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DDS finds a creative way to ‘comply’ with court order on IQ regs

October 30, 2012 1 comment

The state Department of Developmental Services has found what appears to be a creative response to a recent court order that it redraft regulations that had allowed it to deny eligibility for services to persons with apparent intellectual disabilities.

The problem in our view is the Department’s response, in the form of new “emergency” eligibility regulations, creates the appearance of compliance with the order of  the Massachusetts Court of Appeals without complying in reality.   In fact, we think these new regulations would maintain the Department’s discretion to deny eligibility to a potentially large number of intellectually disabled people. 

In what had appeared to be a big victory for people denied eligibility by DDS, the  appeals court declared on July 23 that eligibility regulations, which the Department had adopted in 2006, were invalid.  Those regulations gave the Department the latitude to deny services to anyone who scored above a 70 on an IQ test, even though the person seeking services might meet the statutory definition of intellectual disability in Massachusetts.  That statute defines an intellectually disabled person as someone who is “substantially limited in his ability to learn or adapt.”

The appeals court case concerns a woman who scored a 71 on an IQ test when she was 18, a 69 at age 40, and a 71 at age 42, and who was subsequently denied services by DDS on that basis.  COFAR President Thomas Frain, who represented the woman in this case, said in July that he believed the appeals court ruling could have far-reaching implications for eligibility for DDS services.   He maintained that since 2006, “the message from DDS has been ‘don’t bother to apply if you score above a 70.’”
 
In its ruling, the appeals court focused on a stipulation in the statutory definition of intellectual disability that whether a person is intellectually disabled is something that must be determined by “clinical authorities.”   The 2006 regulations, according to the court, failed to identify any such clinical authorities and instead allowed DDS to rely solely on an IQ score above 70 as a justification for denying eligibility for services.
 

So what was the Department’s creative response to the court’s ruling that it must change the regulations?   It was to state in the the new emergency regulations that the Department itself was now the “clinical authority” upon which clinical judgments regarding intelligence will be made.

It seems to us that this “solution” will allow DDS to continue to deny services to anyone scoring above a 70, while appearing to have complied with the appeals court ruling.  DDS has scheduled a public hearing on the emergency regulations for Nov. 15 at 1 p.m. at the Worcester Public Library.  COFAR joins the Disability Law Center and the Arc of Massachusetts in opposing the DDS’s disingenuous regulatory move.

The appeals court stated that DDS’s eligibility regulations prior to 2006 were consistent with the state law because they did specify a clinical authority — the American Association on Intellectual and Developmental Disabilities (AAIDD) — in defining intellectual disability.   The AIDD’s guidelines in determining intellectual disability do not refer to “a bright-line IQ cutoff score” in making eligibility determinations, according to the appeals court.

The appeals court described the reference to clinical authorities in the DDS regulations prior to 2006 as a “statutory anchor” in establishing whether an applicant for services has an intellectual disability.  Without such an anchor, the Department’s definition of intellectual disability had actually become “a moving target,” according to the court.  

In now designating itself as the clinical authority in making eligibility determinations, DDS does not provide the anchor that the court intended.

It’s as if a judge had ordered a driver to obey the speed limit on a given road, and the driver were to say, “Okay, I’ll obey the speed limit, but the limit will be whatever I decide to set it at.”  A judge wouldn’t be likely to buy that argument, and we don’t think the Massachusetts Court of Appeals will buy DDS’s new emergency regulations either.

  
Categories: Uncategorized

More questions about the Glavin land deal

October 10, 2012 6 comments

Suppose a couple owned a house, and one day, the husband stated that they couldn’t afford to live there anymore and would have to move out.  However, rather than putting the house up for sale, he said he planned to let a friend live in it for a dollar a year. 

Might the wife not object and say maybe they could afford to stay there if they didn’t need the income from a sale of the property?

Isn’t this same sort of giveaway that the administration has just agreed to concerning 69 acres of state-owned land at the Glavin Regional Center, which has been targeted for closure as of next July?

As we previously noted here, the governor signed a bill into law in August to lease 69 acres of land at Glavin for $1 a year for the next 25 years to the Town of Shrewsbury.  The land subject to the lease consists of 15 acres currently used as soccer fields and 54 acres of farmland.

The Worcester Telegram & Gazette reported in 2010 that the total amount of land at Glavin is “more than 120 acres” and had been assessed at $22.36 million.  Thus, the land that has been effectively given to the town in this case could be worth as much as $12.9 million.

Many people seem to think we oppose the continued use of open space at Glavin for recreational and agricultural uses.  That’s not the case.  Our main question here is what happened to the deliberative process that the administration promised with regard to the disposition of the land?

We ask this question not because we want to see this land sold or used for any particular purpose.  But like the wife in the house giveaway scenario above, we question the administration’s assertion that it can no longer afford to keep Glavin open and must evict its longtime residents.  If closing Glavin is about saving money, why effectively give almost $13 million worth of land away without going through the promised reuse process?

In 2008, the administration announced it was closing the Glavin, Fernald, Monson, and Templeton developmental centers, contending there would be a fiscal savings in doing so.  In making the closure announcement, the administration expressly stated that disposition of the land at those centers would be subject to a “collaborative” reuse-committee planning process.

Legislation was subsequently enacted into law to set up land reuse committees for the Fernald Center (Chapter 149 of the Acts of 2004, S. 402) and for the Monson and Templeton Centers (Chapter 59 of the Acts of 2009).  However, a bill filed in January 2009 to establish a similar land reuse committee for the Glavin Center never got out of the Bonding Committee. 

The Glavin land reuse bill, which had been filed by then state Representative Karyn Polito, had stated that the proposed reuse committee “will be mindful of the rights of current Glavin residents, and their need for adequate and appropriate housing, clinical services, and appropriate staffing…”

Why Polito’s bill died and was never refiled is a mystery to us.

Interestingly, in February 2010, the administration proposed to sell what appears to be the same parcels of land at Glavin that it is now prepared to lease to the town for $1 a year.  Area legislators opposed the planned sale of the land. 

What caused the about-face on the administration’s part from wanting to sell the Glavin land with no formal reuse process in place, to agreeing to effectively give the land away, with no formal reuse process in place?

We’ll continue to ask these questions, hoping for some answers.