The major lobbying organizations for corporate providers to the Department of Developmental Services appear to be pushing the Baker administration and the Legislature to privatize more and more state-run care.
And the administration and Legislature have so far appeared to be more than willing to accommodate the providers.
Governor Baker’s Fiscal Year 2018 budget, which he submitted to the Legislature last month, further widens a spending gap between privatized and state-run programs within the Department of Developmental Services. In doing so, it appears largely to satisfy budget requests from both the Arc of Massachusetts and the Association of Developmental Disabilities Providers (ADDP).
In fact, the increase proposed by the governor in funding for privatized group homes is $26 million more than the $20.7 million increase the Arc had sought. The ADDP may be a little disappointed only because that organization had asked for a $176 million increase in that account!
The chart below shows the widening gap in funding for key privatized and state-run DDS services over the past several years, adjusted for inflation. Under this trend, funding for corporate-run, residential group homes, in particular, has risen steeply while funding for state-operated group homes and developmental centers continues to be stagnant or cut.
For Fiscal 2018, the Arc requested a $20.7 million increase in funding for privatized group homes (line item 5920-2000), and the governor obliged with an even higher $59.9 million, or 5.4 percent, increase, as noted.* The ADDP, as noted, wanted a $176 million increase in that line item.
In the privatized community day line item (5920-2025, not shown on the chart), both the Arc and ADDP asked for a $40.2 million increase, and the governor responded with a proposed $13.6 million increase.
At the same time, both the Arc budget request for Fiscal 2018 and the ADDP request effectively asked for zero increases in funding for the state-run DDS accounts. Those include accounts funding state-operated group homes, developmental centers, and departmental service coordinators. (The column labeled “Request” in the linked Arc budget document is left blank for those state-run program line items. The ADDP budget request simply doesn’t include those line items.)
The governor appears to have more than obliged the provider organizations regarding those state-run accounts as well. His Fiscal 2018 budget proposes a $1.8 million cut in the state-operated group home account (5920-2010). This amounts to a $6.9 million cut when adjusted for inflation.
In addition, the governor is proposing a $2.4 million, or 2.2%, cut in the state-run developmental centers line item. (5930-1000). That’s a $4.9 million cut when adjusted for inflation.
And the governor is proposing a cut of $96,000 in the DDS administration account (5911-1003). That is a $1.7 million cut when adjusted for inflation, and means a likely cut in funding for critically important DDS service coordinators, whose salaries are funded under the administrative account.
It’s well known that the Arc and the ADDP oppose developmental centers because those two organizations oppose congregate care for the developmentally disabled and support only care in group homes or smaller settings. What may not be as well known is that the Arc and ADDP appear to have no interest in more funding for service coordinators or state-run group homes, in particular.
Late last month, Baker submitted his proposed Fiscal 2018 budget to the Legislature’s House Ways and Means Committee. In a letter to Representative Brian Dempsey, the chair of the budget panel, COFAR requested that, at the very least, the committee approve a plan to redirect some of the governor’s proposed increase in the corporate residential account to the state-operated group home, facilities, and service coordinator accounts.
(We would note that we have been urging this kind of redirection of funding for the past two years, and neither the governor’s office nor the Legislature are listening.)
Service coordinators are DDS employees who help ensure that clients throughout the DDS system receive the services to which they are entitled under their care plans. In recent years, funding for service coordinator salaries has failed to keep up with their growing caseloads.
A reason for the Arc’s apparent disinterest in service coordinators may be that the organization has long promoted privatized “support brokers,” in which the Arc is financially invested.
The job descriptions of the Arc support brokers and the DDS service coordinators appear to be quite similar. The Arc notes on its website that “consumers or families hire a support broker to help them find appropriate services and supports to thrive in their community.”
The job description of DDS service coordinators states that they are responsible for “arranging and organizing DDS-funded and generic support services in response to individual’s needs.”
COFAR Executive Director Colleen M. Lutkevich terms the DDS service coordinators “the eyes and ears that make sure that the providers who report to DDS are doing their best for the residents in a large, confusing system. Without them, the provider agencies have total control, and families do not even have a phone number or a name to call outside the provider they are dealing with.”
Underfunding of state-operated group homes
In addition to provider-run group homes, DDS maintains a network of state-run group homes that are staffed by departmental employees. State workers receive better training on average than do workers in corporate provider-run residences, and have lower turnover and higher pay and benefits.
State-operated group homes provide a critically important alternative to the largely privatized residential care system that DDS oversees. But we have found that 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.
To be clear, we do not object to a highlight of Governor Baker’s budget — his proposed $16.7 million increase in the DDS Turning 22 account, which would amount to a 222% increase in that account over the current year appropriation. Turning 22 funds services for a growing number of developmentally disabled persons who leave special education programs at the age of 22 and become eligible for adult services from DDS. This account has been historically underfunded.
But our concern is that as they enter the DDS system, those 22-year-olds will be placed almost exclusively in privatized programs. An important choice is being taken away from them and their families.
As we noted in our letter to the House Ways and Means chair, the pattern of privatization in Massachusetts state government has become almost permanently established even though the benefits of privatization are highly debatable. Many questions have been raised about the privatization of prisons and the privatization of education in Massachusetts and elsewhere around the country.
The privatization of human services may be the biggest prize of all for government-funded contractors. We need to preserve what’s left of state-run services.
(*The $59.9 million figure for the governor’s proposed increase in the corporate provider line item is based on numbers provided by the nonpartisan Massachusetts Budget and Policy Center. The Arc’s budget document claims the governor’s requested increase was $46.7 million.)
In the wake of reports that an intellectually disabled woman has been prohibited for more than a year by the Department of Developmental Services from having any contact with her father and sister, a federally funded legal assistance agency has arranged for legal representation to help the woman challenge the ban.
The Boston-based Disability Law Center opened an investigation late last year of a decision by a DDS-paid guardian to prohibit contact between the woman and her father, David Barr, and sister, Ashley Barr. Based on privacy concerns raised by the DLC, we are no longer publishing the woman’s name.
Earlier this month, a DLC attorney said the agency had assisted in making an attorney available at no charge to the woman to challenge the visitation ban in probate court, if she chooses to do so. The attorney said he was precluded by confidentiality requirements from discussing the investigation or any conclusions he may have reached in the case.
Since Thanksgiving of 2015, David and Ashley Barr have had no information about the woman’s whereabouts. She is believed to be living in a DDS-funded group home, but the Barrs have no idea where that residence might be located.
COFAR has reported that a DDS guardian imposed the ban on all contact with the woman by David and Ashley primarily because they were viewed as too emotional when they were allowed to visit her. Neither David nor Ashley Barr have been charged or implicated in any crimes, yet they said they feel they have been treated by DDS as if they are criminals.
In COFAR’s view, restricting family members from visiting a loved one impinges on a fundamental human right, and the DDS guardian should at least have obtained a probate court order before doing so. DDS should also have made sure the woman had access to legal counsel who could challenge the visitation ban on her behalf. DDS reportedly did neither of those things.
The case appears to involve a clear 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…” (115 CMR 5.04)
The right to visitation is, moreover, 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.”
The article discusses Nicholson v. Williams, a class action lawsuit by a group of mothers against the New York City Administration for Child Services (ACS). The lawsuit “challenged ACS’s policy of automatically removing children from homes where domestic violence had occurred even if it meant removing them from the victims rather than the perpetrators of that violence.”
The children of the plaintiffs in Nicholson were kept in foster care for several weeks. According to the law journal, the court “cited the emotional and developmental damage done to the children, (and) the destruction of their family relationships…” that occurred as a result of the separation of the children from their parents (my emphasis).
We would note that the ACS lawsuit was a case involving the removal of children for just a few weeks. The Barr case involves the removal of a family member for more than a year so far, with no indication from DDS that family contact will ever be restored.
While the developmentally disabled woman in Barr case is no longer a child, she has been found to be mentally incapacitated and in need of a guardian. As such, she is in a similar legal position to a child in that she is not considered competent to manage her personal or financial affairs.
The court in Nicholson v. Williams cited specific international provisions including the Universal Declaration of Human Rights, and found that the New York ACS policy “violated the basic human rights of family integrity and freedom from arbitrary interference with family life, as well as the specific right of a child to be cared for by her parents.”
In what seems almost an obvious observation, but one that doesn’t seem to have occurred to DDS, the Berkeley law journal article notes:
People simply care a great deal about their families, and often suffer more from losing them than they do even from serious individual harms they suffer personally.
A couple of other points made in the law journal article are worth highlighting. One is a statement that temporary removal of children from families may cause “lasting harm to the children…especially if frequent visitation is not allowed during the removal period.”
The article also points out that the International Convention on the Rights of the Child (ICRC) imposes obligations on states in situations where families have already been separated. In particular, the ICRC states that where children are separated from one or both parents “the state must furnish the parents or children with any available information regarding their family members’ whereabouts” (my emphasis).
The Massachusetts Supreme Judicial Court weighed in last spring with a decision upholding the right of the grandfather of a developmentally disabled woman to challenge severe restrictions placed on his right to visit her.
As we’ve said before, and will again, major reforms are needed in the state’s probate court system in order to ensure the rights of families to maintain contact with their loved ones in DDS care. One of the first steps is for the Legislature to finally pass a bill (filed in the current session as HD 101) that would require probate judges to presume parents to be suitable guardians for persons with developmental disabilities.
In opening remarks at a conference on employment opportunities for the developmentally disabled late last year, Department of Developmental Services Commissioner Elin Howe gave what appears to be an overly rosy assessment of the likelihood of mainstream jobs for those people.
In her written remarks delivered to the November 30 conference, which was hosted by DDS and the UMass Institute for Community Inclusion, Howe appeared to imply that former participants in sheltered workshops, which the administration has worked to close, have been placed in mainstream jobs at a record rate.
“There are now more people working in individual jobs in the community than ever before,” Howe stated.
But while the numbers Howe cited show an increase in the number of people placed in mainstream jobs since 2013, it appears that most of that increase occurred between 2013 and 2014, before the workshop closures took place. Since 2014, DDS data indicates that the number of people finding mainstream jobs declined rapidly.
Howe noted that all remaining sheltered workshops in the state were closed as of last July 1, and that Massachusetts was only the fourth state in the nation to do that. But the loss of those workshops should not be a cause for concern, Howe contended, because, there were now more than 3,300 individuals working in “group supported employment” in the state – an increase of over 1,300 people since June 2013.
An increase of 1,300 disabled people in group supported employment would work out to a 65 percent increase in the number of people in that category since 2013, which sounds like a major success story.
But of that total increase cited by Howe of 1,300 individuals, 998 — or nearly 77 percent of them — appear to have entered group supported employment between 2013 and 2014, according to data provided by DDS.
The DDS numbers show there was an increase of only 146 people in group supported employment between August 2014 and August 2015. Between August 2015 and November 2016, when all remaining sheltered workshops were closed, there was an increase of only 156 people in group supported employment.
So, while the number of people in group supported employment appears to have increased by almost 50 percent between 2013 and 2014, the increase in the two-year period from 2014 to 2016 dropped to about 10 percent.
Group supported employment is defined by DDS as “a small group of individuals, (typically 2 to 8), working in the community under the supervision of a provider agency.” In contrast to sheltered workshops, supported employment places an “emphasis…on work in an integrated environment,” which means that developmentally disabled persons work in the same location as non-disabled individuals.
The closures of the sheltered workshops in Massachusetts has resulted in the removal from those programs of close to 2,000 participants since 2013; but those closures did not appear to have translated into a steady flow of people into supported employment. Even Howe appears to acknowledge that a significant percentage of those former workshop participants have not found mainstream workforce jobs.
In her remarks, Howe stated that “many people transitioned (from sheltered workshops) to Community Based Day Support programs,” but didn’t say how many. Day programs are often really just daycare programs that do not offer work-based or skill-building activities to the people in them.
The Massachusetts Developmental Disabilities Council, which is part of the Baker administration, appears to acknowledge the problem of employment in its State Plan for 2016, noting that:
…there are fewer people being placed in successful employment due to staff layoffs and the current fiscal environment. In order for more services to be made available, it is important to create partnerships and work with various state agencies in order to address this significant issue that is and will continue to be of concern. (my emphasis)
Last year, however, the Legislature failed to provide funding sought by Governor Baker for the transition from workshops to supported employment.
Rather than touting the supposed good news about the closures of the workshops, Howe should have acknowledged ongoing concerns about the apparent difficulty of finding mainstream work for people with developmental disabilities.
In a preview this week of the Fiscal 2018 state budget, the Massachusetts Budget and Policy Center points out a key shortcoming in the budget process.
That process is not transparent, the nonpartisan think tank argues, because it doesn’t provide a needed context for the proposals and decisions that the governor and Legislature make.
As the Budget and Policy Center notes, that needed context lies in the release of a public “maintenance budget” that discloses the projected costs of continuing “current services” from one fiscal year to the next. Without that “maintenance budget” context, it is difficult, if not impossible, for the public to really know whether proposed funding levels are meeting real needs or falling short of them.
The problem can be clearly seen in the current-year funding of group homes operated by the Department of Developmental Services.
Last January, Governor Baker proposed a $3.7 million — or 1.7 percent — increase in the DDS state-operated group home line item. But while that sounds like more funding for those facilities, it was in actuality a cut when adjusted for inflation. The inflation rate was 1.8 percent, according to the Policy Center’s numbers.
Moreover, the funding increase proposed by the governor for the state-operated group homes was reportedly about $500,000 less than what DDS wanted in order to maintain current services in the residences. That $500,000 figure, however, wasn’t readily available to the public. The figure was casually mentioned by DDS Commissioner Elin Howe during a conference call on the budget last year with advocates for the developmentally disabled.
At the same time, Howe didn’t intend to do anything about that actual shortfall in funding for the state-operated group homes. As we noted last May, while Howe admitted the funding proposed by the governor for the group homes was inadequate, she also said DDS did not intend to seek an amendment in the House budget to increase that funding. Howe’s response to us was, “we’re just going to have to manage it.”
This is exactly why the maintenance budget disclosure is needed as part of the process. It would give the public a better insight into what the governor and Legislature actually intend with their budget proposals and deliberations.
It appears to us that the DDS mindset is that it is not worthwhile to push even for maintenance-level funding for the state-operated group homes and potentially other state-run programs. That’s because the Department’s ultimate priority or aim, as we see it, is to privatize these services.
Interestingly, the Budget and Policy Center also pointed out that certain other budgetary accounts were underfunded in the current fiscal year, including a human services account that helps fund corporate provider-run or privatized group homes in the DDS system. That account was underfunded by $14.7 million. However, the administration apparently plans to fully fund those accounts next year, the Center noted.
Partly as a result of the unfunded accounts and the use of a host of one-time revenues and temporary solutions to balance the current-year budget, the Policy Center is projecting a $616 million budget shortfall in Fiscal 2018.
The Policy Center’s preview suggested that one of the major reasons for the Legislature’s underfunding of the privatized group home and other accounts was the lack of a publicly available maintenance budget document. The Policy Center points out that 19 other states publish a maintenance budget document, but Massachusetts is not among them.
The Policy Center is also calling for the public release of a baseline tax revenue growth estimate. This sounds like a suggestion that the administration adjust its usual revenue projections to take into account any tax cuts or tax increases that have been enacted. As the Policy Center noted,
The initial tax revenue growth estimates for FY 2017 were unusually optimistic, but there was no easy way to see that because of the way the estimates were presented.
We concur with the Budget and Policy Center’s recommendations, particularly on the need for disclosure of a maintenance budget. The more information the public has with which to assess the budgetary process, the better off we are, and this appears to be a key piece of missing information.
Our January 2017 issue of The COFAR Voice newsletter is now online, with stories about:
- The bleak outlook for the DDS budget for Fiscal 2018
- How a family has been banned for more than a year from all contact with a young woman in the DDS system
- Changes proposed by DDS in regulations on restraints and behavioral modification techniques that appear to make those rules more vague
- Publication of a gritty and compelling book on the life of Donald Vitkus, a survivor of the former Belchertown State School. The book was written by Ed Orzechowski, a COFAR board member and president of the Advocacy Network.
and much more.
Our January issue is a recap of highlights and critical issues we faced in 2016. It was a year that culminated in our December 29 meeting with two key members of Governor Charlie Baker’s staff. The unusual (for us) meeting was arranged by Marty Corry, our long-time, pro bono lobbyist on Beacon Hill.
Prior to the meeting, Marty arranged a conference call in which we discussed how we would boil down the many issues we wanted to discuss into a format that could be absorbed in the half hour to 45 minutes that we expected we would have. In the end, Kaitlyn Sprague, Baker’s legislative director, and Ryan Coleman, Baker’s deputy chief secretary, talked with us for over an hour.
Our theme for the meeting was an emphasis on the rights of individuals with developmental disabilities and their families and guardians to the fullest possible choice in care and services. We focused on three areas of concern:
- Protecting and preserving the state-run line items in the DDS budget, particularly Line Item 5920-2010 (the state-operated group homes) and Line Item 5930-1000 (the developmental centers)
- Ensuring that DDS disclose state-run care as an option to people seeking services, as required by federal law. (The Home and Community Based waiver of the Medicaid Law [42 U.S.C., Section 1396] requires that intellectually disabled individuals and their guardians be informed of the available “feasible alternatives” for care.
- Achieving the passage of H. 1459, which proposes that a spouse or parent be presumed in probate court to be the proper person to be a guardian of a developmentally disabled or otherwise incapacitated person unless competent evidence is introduced to the contrary.
We consider H. 1459 to be a critically important rights measure for family members of people with disabilities — particularly developmental disabilities. We have found that families are routinely overruled in decisions about the care of their loved ones in probate court proceedings by medical and clinical “experts,” DDS, probate court judges, and service providers. Yet, this bill, which has no known source of opposition, dies every year in the legislative process.
Enactment of this legislation could prevent tragic situations such as the ongoing case of the Barr family in which the father and sister of Chelsea Barr, an intellectually disabled woman, have been prevented by a DDS-paid guardian from all contact with Chelsea for more than a year.
Our January newsletter touches on all of these issues. We hope you will check it out. It’s coverage you will find nowhere else.
Without interviewing family, DDS upholds complete ban on family contact with developmentally disabled woman
After a “careful review” that did not happen to include interviews with at least two of the three principals in the case, the Department of Developmental Services has upheld an indefinite ban on all contact between those two individuals and a developmentally disabled woman.
The ban has now been in effect since Thanksgiving of 2015 on all communication between the disabled woman, Chelsea Barr, and her father, David, and her sister, Ashley.
Meanwhile, Ashley and David Barr said they feel abandoned by two of their state legislators who have declined even to send a letter to DDS Commissioner Elin Howe expressing concern about the emotional distress that Ashley and David are experiencing in being denied contact with an immediate family member for more than a year. (More about that below.)
COFAR has reported that a DDS guardian imposed the ban on all contact with Chelsea Barr by David and Ashley primarily because they were viewed as too emotional when they were allowed to visit her. Since the beginning of this year, DDS has not even informed David or Ashley as to where Chelsea is living.
COFAR has asked DDS Commissioner Howe to restore David and Ashley’s contact with Chelsea, who has both an intellectual disability and mental illness. In early October, Howe stated that the matter was under review by the Department.
Howe did not respond to subsequent requests by COFAR Executive Director Colleen M. Lutkevich in early November for information on the status of the Department’s review or whether it would include interviews with Ashley and David Barr.
Then, in a November 17 email to Lutkevich, DDS General Counsel Marianne Meacham stated that the departmental review had concluded that the restrictions on the Barrs’ contact with Chelsea and the Department’s handling of the matter had all been appropriate.
“Without disclosing confidential information, this matter has been carefully reviewed, and we believe that appropriate steps have been taken by the Department and the Probate Court,” Meacham’s email stated. “Should circumstances change, there is recourse through the Probate Court.”
Both Ashley and David said they had not been contacted by anyone from DDS as part of that departmental review. They said they had hoped for a call, and would have gladly answered any questions DDS might have had about what actually occurred when they were previously permitted limited visits with Chelsea.
“There is no way DDS has done a careful review in this case,” Lutkevich said. “This has all the earmarks of a state agency that embarked on an internal review with a predetermined outcome, which was to clear itself of any mishandling of this matter. This case needs to be reviewed by an impartial, outside party.”
While state law prevents us from discussing criminal charges that may be connected with this case, we can state categorically that neither David nor Ashley has been implicated or charged in any crimes. Yet both feel they have been treated like criminals in being kept in the dark about Chelsea and prevented from having any contact with her.
And while Ashley and David may technically have the ability to go to court, they have not been able to afford the expense of a lawyer. As a result, all of the decisions made by probate court judges in the case have gone against them, including a bid by David to regain guardianship of Chelsea.
As COFAR has reported, a DDS attorney and Chelsea’s DDS guardian and service coordinator all made what appeared to be prejudicial and damaging statements about David and Ashley during an August 2015 probate court hearing in which David had sought to be named Chelsea’s guardian. None of those statements was challenged during the hearing.
The prejudicial statements include a claim by Whitbeck that erroneously implied that David provided inadequate care for Chelsea when she previously resided with him, and a separate speculative statement that David and Ashley wanted to visit Chelsea out of “a sense of guilt.”
In addition, hearsay statements were made in the hearing by both Dorothy Wallace, Chelsea’s then temporary guardian, and Jill Casey, her DDS service coordinator, that appeared to be intended to cast David and Ashley in a negative light before the probate court judge.
In one instance, Wallace testified that David had been overheard by staff in one hospital promising Chelsea he would become her guardian and would take her home soon. That reportedly made Chelsea resistant to the idea of continuing to stay in the hospital. But David denied that he said that.
No evidence was presented in the August 2015 probate hearing supporting Wallace’s additional claim that emotional family interactions caused psychotic symptoms in Chelsea. That claim by Wallace, however, appears to be a primary reason for her decision to impose increasingly severe restrictions on family contact, culminating in the total ban as of Thanksgiving of 2015.
The Barrs’ legislators decline to stand up to DDS for them
Following the imposition of the ban on contact with Chelsea, a friend of the family sought help for the family from state Representative Linda Dean Campbell of Methuen, David Barr’s local House member. The friend said Campbell’s office did not provide any help as far as she knew.
COFAR contacted Campbell’s office in early October and spoke to a member of Campbell’s staff, who said he did contact DDS about the matter after hearing from the Barr family’s friend. At the time, the DDS staff member said, DDS put him in touch with Wallace, who gave similar reasons for having cut off the family’s contact with Chelsea that she had given in probate court.
Campbell’s staff member said that after that conversation with Wallace, he didn’t pursue the matter further. The staff member did not contact either David or Ashley to ask for their response to Wallace’s claims.
COFAR attempted to renew the request for help for the family with both Campbell’s office and the office of Senator Kathleen O’Connor Ives, whose district includes Methuen. A staff member from Ives’ office did subsequently contact Ives’ office’s DDS liaison — a DDS deputy assistant commissioner. However, she said the DDS liaison refused to discuss the matter with her for reasons that she said were not clear to her.
At that same time, COFAR requested that both Campbell and Ives send a joint letter to DDS Commissioner Howe, expressing concern about the cutoff of David and Ashley’s contact with Chelsea.
However, in mid-November, about 10 days after COFAR made the request, the staff members for both Campbell and Ives said the lawmakers would not send a letter to Howe. Ives’ staff member said Ives didn’t think a letter was necessary or would accomplish anything, while Campbell’s staff member said Campbell’s legal counsel raised a concern that sending such a letter could violate Chelsea’s privacy rights.
In an email sent in response to both legislative staff members, I said that we at COFAR strongly disagreed that a letter from the legislators to Howe would not accomplish anything. We also disagree that Chelsea’s privacy would be violated by such a letter.
“Given that the DDS liaison has not been helpful in this case, it is all the more important to go up the line to the commissioner,” I said in my email message. “This family needs to know that someone in the political system cares about their situation.”
“Lutkevich also sent an email message to Campbell’s staff member. Lutkevich’s message stated that:
There is really no valid reason that a simple letter can’t be sent asking why this family cannot 1) be informed of their intellectually disabled daughter/sister’s whereabouts, and 2) set up visits, even if supervised. Prisoners are allowed visitors, as are families under DCF (Department of Children and Families) supervision, but this young woman with an intellectual disability is not even being allowed to have the slightest bit of contact with the only family she knows. We can only imagine how abandoned she must be feeling.
Neither Lutkevich nor I received any response from either Campbell’s or Ives’ offices to our emails.
Unfortunately, it is no longer surprising to us that DDS would disregard its own regulations that require humane and least restrictive care, or even that members of the state Legislature would decline to go to bat for their constituents.
As I noted in a recent blog post that generated a lot of discussion about the reasons for the outcome of this year’s presidential election:
Whether it is a global trade deal that ships American jobs overseas, or a decision by a state legislator not to stand up for a constituent who has a grievance with the executive branch, government has lost sight of its real purpose.
Court statements show DDS employees held a bias against family members seeking to visit Chelsea Barr
In statements made in a probate court hearing last year, an attorney for the Department of Developmental Services and two other DDS employees appeared to demonstrate a bias against the father and sister of a developmentally disabled woman who have been seeking to visit her.
The August 17, 2015 hearing in Essex Probate and Family Court appears to have set the stage for a complete ban as of last Thanksgiving on all contact with Chelsea Barr by her father, David, and sister, Ashley.
COFAR has urged DDS Commissioner Elin Howe to restore David and Ashley’s contact with Chelsea, who has both an intellectual disability and mental illness. COFAR is also questioning why DDS recommended the appointment of a guardian for Chelsea who had never previously met her.
In recommending the guardian, DDS passed over David, Ashley, and a family friend, who had offered to be Chelsea’s guardian and knew her well.
In the wake of allegations that Chelsea had been sexually assaulted over a two-year period by an alleged boyfriend of her mother’s, Chelsea was removed from her mother’s care and from regular contact with most of her family in 2014.
Since last Thanksgiving, David and Ashley have been barred by the guardian from all contact with Chelsea, and even from knowledge of her whereabouts. However, neither David nor Ashley have been charged or implicated in the sexual assault case.
The 70-minute recording of the probate hearing is replete with statements and testimony from Dorothy Wallace, then Chelsey’s temporary guardian, and from Jill Casey, a DDS service coordinator, and Barbara Green Whitbeck, a DDS attorney, that appear to indicate a bias against David and Ashley. The statements appeared to be intended to sway the probate court judge against appointing David as Chelsea’s permanent guardian or allowing more family contact with her.
The prejudicial statements in the hearing include a claim by Whitbeck that erroneously implied that David either caused or was responsible for abuse of Chelsea when she was 12 years old, and a separate speculative statement that David and Ashley wanted to visit Chelsea out of “a sense of guilt.” Wallace also erroneously testified that records indicate Chelsea was sexually abused by another family member at the age of 12.
Other statements by Whitbeck, Wallace, and Casey appeared to be hearsay, and are strongly disputed by Ashley and David Barr. However, the statements all went unchallenged during the probate hearing because the Barrs did not have an attorney present at the proceeding who might have cross-examined the DDS employees.
The recording of the court hearing provides an unusual glimpse into how DDS, a large public agency, uses its superior legal power and resources to overcome family resistance to its decisions about developmentally disabled people in its care. Without an attorney to represent them, individuals are virtually helpless in probate court cases.
The hearing concerned a request by David and Ashley that they resume regular contact with Chelsea and that David be appointed as her guardian. The judge, however, ruled instead in favor of the appointment of Dorothy Wallace, the candidate recommended by DDS, as Chelsea’s permanent guardian.
In her testimony, Wallace said the reason for her restrictions on contact with Chelsea was that David and Ashley became too emotional when they were permitted visit her, and that this caused Chelsea to have psychotic symptoms.
Wallace also said that clinicians in one hospital were upset that David had promised Chelsea he would become her guardian and would take her home soon. That reportedly made Chelsea resistant to the idea of continuing to stay in the hospital, according to Wallace.
Wallace’s testimony about what David might have said to Chelsea appears to be hearsay, however. David denied that he ever promised Chelsea he would immediately take her home from the hospital. None of the clinicians who reportedly overheard David making that promise to Chelsea were asked or required to testify at the probate hearing.
No evidence was provided at the 2015 hearing, moreover, as to how or why an emotional interaction with her family would cause Chelsea to have psychotic symptoms. Wallace repeatedly testified that her intention was to reunite the family once Chelsea had been clinically stabilized. Yet, David and Ashley remain barred from any contact with Chelsea more than a year later.
In what was perhaps an unintentionally telling admission about the level of isolation to which Chelsea has been subjected, Wallace testified at one point that she was surprised to find out that an aunt of Chelsea’s had actually gotten in to see her at a hospital a few weeks before the probate hearing was held. “A clinician called and said an aunt had visited her,” Wallace testified. “I said I didn’t think anyone was visiting. How did they find her (Chelsea)?”
In early October, DDS Commissioner Elin Howe responded to an email from COFAR Executive Director Colleen M. Lutkevich, saying the Barr case was under departmental review. Since that time, however, neither David nor Ashley Barr have been contacted by DDS as part of that review.
Howe has not responded to follow-up emails from Lutkevich, seeking information on the status of the DDS review of the case or whether or when David and Ashley will be allowed to see Chelsea again.
DDS has also declined to comment on the statements made at the 2015 probate hearing. In an email, DDS General Counsel Marianne Meacham stated that the Department would not comment “on matters involving confidential and protected client information, and which are the subject of a pending criminal prosecution.”
The recording of the 2015 probate hearing, however, is a public document. While cases involving sensitive probate issues are usually impounded, meaning they are blocked from public access, DDS, for unknown reasons, only requested that the Barr case be impounded last August, a year after the hearing was held.
Damaging opening statement from the DDS attorney
During the August 2015 Probate Court hearing, DDS Attorney Whitbeck made an opening statement that was potentially damaging and yet highly misleading about David Barr. Whitbeck said witnesses she planned to call to testify in the hearing would:
…give a clear picture of a young woman who really has suffered unspeakable traumas in her life, beginning all the way back to about age 12 when she was residing with her father, and again in the past couple of years when she was residing with her mother… (my emphasis).
This statement appears to imply that David Barr either personally abused his daughter or was responsible for abuse. But what Whitbeck was actually apparently referring to was one incident when Chelsea was 12 in which a friend of her brother allegedly inappropriately touched her when family members were not present, according to Ashley. David Barr has never been accused of or implicated in any abuse of Chelsea, and neither has her brother.
There was no testimony given at the hearing that implicated David or Ashley in any abuse of Chelsea. Wallace did testify that she understood that Chelsea had Post-traumatic stress disorder (PTSD) “dating back to the age of 12 or 13 due to alleged sexual abuse from her brother.” This statement was not only hearsay, but it is apparently wrong. Other than her mother in 2014, no member of the family has ever been implicated or charged in any abuse of Chelsea.
As noted, David and Ashley had no attorney representing them during the hearing, and therefore no one challenged Wallace’s claim about that alleged abuse of Chelsea when she was 12 or 13, or questioned how Wallace had come across that information. No one, in fact, asked that Wallace or the DDS attorney produce any records backing up her claim that Chelsea had been abused by a family member when she was that age.
Whitbeck also said in her opening statement that “it is understandable that the family wants to be involved with Chelsea, out of a sense of obligation and maybe guilt…” This statement also went unchallenged. It’s a potentially damaging statement. Whitbeck never specified what the family’s guilt might be about and was never questioned about it.
David and Ashley portrayed as overly combative
Other statements made by Casey and Wallace appeared to be intended to portray David and Ashley as overly combative with them. Whitbeck described David as a “bully,” and Casey testified that he had sworn at her when they first met and had once left a threatening message on her answering machine. She said his threat on the answering machine was a statement that “‘I’ll get you people,’ or something like that.” During the hearing, David tried to dispute that he had said that, but was admonished by the judge for interrupting.
Ashley maintains that David has never been physically threatening, but may have threatened to sue DDS at some point over the restrictions placed on his contact with Chelsea.
Wallace, when asked to describe the family’s interaction with her, testified that the family had been “chaotic and caustic.” But Wallace provided no examples of statements or actions by David or Ashley that could be characterized in those terms.
Wallace said she had talked with David only once or twice, and had had “multiple conversations” with Ashley in which she had tried “to educate Ashley in regards to how truly sick her sister is psychiatrically.” As Wallace described her interaction with Ashley:
She (Ashley) kept saying all she (Chelsea) needs is family. I agree that at some points Chelsea needs her family. It was never my intent to take her away, but when she is not stable and the hospital is calling me saying they’re (the family is) destabilizing her even more, I had to come and say we’re going to terminate things.”
Many of the accusations made against the family by Wallace and Casey at the hearing were based on apparent hearsay. In particular, Wallace testified that she had heard someone in one hospital say that David told Chelsea she would be coming home soon and that he would be named her guardian. This apparently upset the clinicians at the hospital, who then asked Wallace to ban further family visits, according to Wallace.
But Ashley and David disputed that David had made any such promise to Chelsea. Rather, he said, he was trying to reassure Chelsea that one day she would be coming home.
Similarly, Whitbeck stated that she understood Ashley had been overheard telling Chelsea not to listen to hospital staff. Ashley disputed that during the hearing, testifying that she had told her sister only not to listen to other children in the hospital whom Chelsea said she believed had been making fun of her. “I would never tell Chelsea not to listen to doctors,” Ashley testified. ” We want her to get the treatment she needs. We are not trying to interrupt her treatment.”
Casey also testified that she heard that David had taken Chelsea to a doctor for anti-psychotic medications only once. This also appears to be hearsay. Ashley told COFAR that David took Chelsea for medications and to doctors’ appointments “multiple times.”
A lack of familiarity with Chelsea and her family
Testimony provided by Wallace indicated either a lack of familiarity with Chelsea and her family or a lack of time to represent her adequately or act in her best interest. This raises questions in our view as to why Wallace was recommended by DDS to be Chelsea’s guardian, and why an offer from a family friend who knew Chelsea well was apparently disregarded.
Wallace, who had never met Chelsea until just before she was appointed as her temporary guardian, appeared to be unaware or unsure of details of Chelsea’s care and living arrangements in the months prior to the August 2015 probate hearing.
After having been removed from her mother’s care, Chelsea was moved in and out of shared-living arrangements and hospitals. She was admitted to Arbor Fuller Hospital in Attleboro in March 2015 and discharged in June of that year, just two months prior to the probate hearing. Asked during the hearing where Chelsea was sent after her discharge from Arbor Fuller, Wallace testified that she was unsure. “I think she want to respite or to Donna’s (a shared-living arrangement). I don’t know,” she said.
Wallace said she was aware that Chelsea ended up at Tewksbury State Hospital in early August 2015, but she was unsure of the name of the psychiatrist at Tewksbury State who was in charge of Chelsea’s anti-psychotic medications there. Under questioning, Wallace also said she was unaware that Chelsea had a sister in addition to Ashley.
Asked how many times she had visited Chelsea in the seven-month period since she had been appointed as her temporary guardian, Wallace described what appeared to be approximately six meetings with her. Few if any of those meetings appeared to be strictly social visits. At least one of those meetings was a clinical care planning meeting regarding Chelsea’s ISP (Individual Support Plan), while another visit was to meet an aunt of Chelsea’s who was allowed to visit Chelsea at Tewksbury State.
As we’ve noted before, we think this case is being mishandled by DDS. We see no justification for the continuing refusal of DDS to allow any contact in this case between a young woman with special needs and members of her family who have nothing to do with the criminal proceedings that are involved. That denial of contact is further victimizing both this young woman and innocent members of her family.