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Archive for April, 2013

DDS, in dispute with parent over care of her disabled son, seeks to remove her as guardian

April 10, 2013 9 comments

Apparently unable or unwilling to resolve a dispute over the proper residential placement for a developmentally disabled man, the state is seeking to remove the man’s mother as his guardian. 

The Department of Developmental Services has filed in Middlesex Probate Court to remove Patricia Feeley, a COFAR Board member, as guardian of her 27-year-old son,  Michael, and to appoint James Feld, a Woburn attorney, in her place. 

Feld is described in the petition only as an “advocate” for Michael Feeley, but DDS acknowledged in a court document that Feld had never previously met Michael. 

DDS is not alleging any abuse or neglect of Michael, and in fact, has described Feeley in court documents as “devoted to him” and “concerned for his well-being.”  However, the Department contends that Feeley has rejected several suggested residential placements for Michael and is not acting in his best interest.  And DDS is further alleging that Feeley’s home, where Michael has lived his entire life, is not safe because it has excessive “clutter” in it. 

Feeley has actively sought for several years to place her son, who has type 1 diabetes, in a suitable DDS facility.  She maintains that the real reason DDS is seeking to remove her as her son’s guardian is that the Department doesn’t want to provide a residential facility for him with 24-hour nursing care. 

“The Probate Court is the wrong forum for this case,” Feeley maintains, adding she would be “devastated” if DDS succeeds in removing her as Michael’s guardian.  A pre-trial conference in the case was scheduled in Probate Court on Thursday. 

Michael, who has profound intellectual disability, is non-verbal and is unable to dress or bathe himself.  Feeley said she was told his IQ was too low to measure.  DDS’s petition to appoint Feld as guardian suggests that Michael be moved to a group residence in Chelmsford that Feeley noted does not have continuous, on-site nursing.   

A friend and advocate of Feeley’s, who visited the North Chelmsford residence with Feeley last summer, maintained that the nurses there travel among several residences, one of which is in Lynnfield, about an hour away.  The friend contended there are no nurses on site in the Chelmsford residence during the evening shift. 

Feeley contends her son, who requires as many as seven injections of insulin per day, needs a residence with 24-hour, on-site nursing care.  Feeley, 65, who works as a part-time clinical lab technician and is a certified nurse assistant, currently administers the injections herself, monitors Michael’s blood glucose, and personally provides all other care at home for him.  Michael’s extensive care needs prevent her from working full time.

Feeley’s assessment of her son’s medical needs is backed up by a May 28, 2010 letter from a physician at Children’s Hospital in Boston, who wrote that Michael’s blood glucose spikes at times “for no apparent reason,” and that “it is not possible to predict when that might occur.”  The doctor’s assessment continues: “A nurse needs to be present and able to attend to Michael’s needs at any time to avoid a delay in Mike receiving appropriate medical intervention.” 

DDS, however, contends that Michael does not need 24-hour, continuous nursing.  The Department has also alleged that Feeley’s home, where Michael has lived for his entire life, is unsafe for him because it contains stacks of newspapers and magazines in the hallways and other rooms, including the kitchen. 

But Feeley denies that her home is unsafe, and her attorney, Stephen Sheehy, contended that the clutter issue is a “red herring.”  Sheehy maintained that the issue is not germane because Feeley herself is seeking a suitable residential placement for her son, outside of her home.  He added that DDS has failed to provide a clinical document, justifying its decision not to provide a setting for Michael with 24-hour nursing care on site.  

Moreover, Sheehy noted, DDS last year informed Feeley that Michael was not entitled to a DDS care plan, known as an Individual Support Plan (ISP), which would specify nursing services for him, because he was not receiving any services from the Department. 

Asked if he had any idea why DDS would seek to remove Feeley as her son’s guardian, given that her son is not currently served by DDS, Sheehy responded, “I don’t know.  That’s one of many bizarre things about DDS’s involvement in this case.” 

DDS contends that it first raised the issue of clutter in 2008 when an assistant DDS area director visited Feeley’s home.  However, the Department did not act at that time to remove Feeley as her son’s guardian.  Michael has lived at home for an additional five years since then.  Feeley says that no one at DDS ever mentioned the issue of clutter in her home to her until last summer.  In addition, DDS Commissioner Elin Howe stated in a letter to Feeley in 2011 that “it appears that Michael is doing well in his day program [which is not a DDS program] and living at home.” 

In an affidavit attached to the DDS petition to remove Feeley as guardian, Alfred Nazzaro, director of the DDS Lowell Area Office, maintained that DDS “first tried to notify the Public Health authority (building inspector) [about the alleged clutter] but was unable to get any official to publicly confirm the danger, and on information and belief, Mrs. Feeley continued to deny both Department and Public Health officials access to her home.”  Nazzaro’s affidavit did not state when the building inspector was contacted. 

Feeley contends that no local health officials ever contacted her, and that she never denied anyone entrance to her home.

Also, while DDS depicts Feeley as being unreasonable in her alleged rejections of their proposed placements for Michael, court documents show that in at least one case, Feeley had accepted a proposed placement in writing, but that DDS later changed the terms of a verbal agreement with Feeley concerning nursing services that would be made available at the facility. 

Nazzaro’s affidavit stated that Feeley had written him in early June 2009, accepting an offered placement at the Hogan Regional Center for Michael, and had urged that it be done as soon as possible, based on the availability of on-site nursing there.  Her letter added that she had “finally found contentment for the first time since arranging for Michael’s future.”  But, as the affidavit stated, it was DDS that subsequently changed the offer, in a meeting on June 30, when “it was determined that Michael did not need 24-hour nursing services.”  Nazzaro’s affidavit stated that, “Once Mrs. Feeley was informed that 24/7 nursing services would not be recommended…Mrs. Feeley rejected placement at Hogan.” 

Feeley denies that she actually rejected the Hogan placement at that point.  In fact, she contends she was never told 24/7 nursing services would not be recommended at Hogan, and asserts that in a meeting which occurred months later, no one voiced disagreement with Michael’s diabetes treatment plan.

In a motion filed to dismiss the DDS petition, Sheehy also alleged several irregularities in the Department’s filing, including the lack of a signature of a human being on the petition document.  On the signature line of the petition, which states that the document is signed under the penalties of perjury, someone had written only “Department of Developmental Services.” 

“I don’t know who’s accusing me,” Feeley maintained. 

Sheehy’s motion to dismiss stated that an entity such as DDS “can’t execute a document under the penalties of perjury, because such penalties can only attach to a human being…”

Autism Commission report has important recommendations, but funding remains a question

A state report released last week contains a number of important recommendations to begin to deal with the yawning gap in services, job opportunities, and housing for what may be the fastest growing group of developmentally disabled people in the state and the country.

The Governor’s Commission on Autism listed 13 priorities in addressing the problem, including expanding the number of people eligible for care from the Department of Developmental Services, expanding available community-based services, and expanding private insurance coverage available to families of autistic children and adults.

One apparent shortcoming of the report — and we’re not saying it would be easy to address that shortcoming — is that the report doesn’t say where the money would come from for all of these necessary expansions.  It doesn’t appear that even Governor Patrick’s proposed tax increases to fund his Fiscal Year 2014 budget would come close to providing the needed funding for what the Commission notes needs to be done.

It’s somewhat ironic that even as the governor’s Commission calls for these service expansions, his proposed budget would cut funding to the state Autism Division, which manages a key children’s program that the Commission has proposed expanding. 

The Massachusetts Budget and Policy Center’s  budget browser shows an inflation-adjusted cut in the governor’s FY ’14 budget proposal of 2.6 percent from the amount appropriated for the current fiscal year for the Autism Division.

It’s also ironic, looking back on it, that then Secretary of Health and Human Services JudyAnn Bigby told The Boston Globe in 2008 that the planned closures of four state developmental centers for the intellectually disabled would free up some $45 million a year for community-based programs, including services for people with autism.

Since that time, close to $70 million in inflation-adjusted dollars has been cut from the developmental centers line item in the budget.  But that money does not appear to have been used to boost most community-based line items.  Funding for the Autism Division has, in fact, declined by about 5 percent since Fiscal Year 2009.  (Again, these numbers are based on the MBPC’s budget browser.)

Nevertheless, we applaud the Commission for calling further attention to the current lack of adequate services for children and adults with autism, and for its endorsement of proposed legislation in the current session to expand DDS’s responsibility to care for people with autism who don’t currently fit within the Department’s eligibility guidelines (H. 78 and S. 908).

The report criticized inadequate staffing levels in community-based residential care for people with autism and low compensation of staff, which has led to high turnover.  The report also noted that many adults with autism live with elderly parents and have “few options for future housing and support.”  In addition, the report cited “an unknown backlog of people who would apply for aid if relevant programs existed.”

And the report called for hiring “highly trained service coordinators specially trained in autism.”  The report didn’t discuss how this would be done, given that the state has been steadily eliminating service coordinator jobs in recent years.

Nevertheless, we’re glad the Commission put all these things on the record and showed, if nothing else, that they are of concern to state policymakers.