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DDS should not be investigating itself for abuse and neglect in the Perry case, or in any other cases

November 19, 2014 7 comments

As Fox 25 news reported earlier this month, the Department of Developmental Services has determined there was not sufficient evidence to charge staff at the Templeton Developmental Center with mistreatment, stemming from the death last year of Dennis Perry, an intellectually disabled man.

Perry, who was 64, died in September 2013 after having been allegedly shoved into the side of a boiler at the developmental center’s dairy barn by Anthony Remillard, a resident of the center, who had a history of violent behavior.

The DDS investigation report and related correspondence, dated in August of this year, termed the behavior of certain staff prior to the alleged assault  “inappropriate” and “unprofessional,” and recommended retraining of Templeton personnel.  But the report concluded that there wasn’t evidence that the staff could have prevented Remillard’s alleged “spontaneous and unpredictable assault” on Perry.

We are not in a position to second-guess the conclusions of the DDS report.  But this case once again raises the question whether it is appropriate for DDS,  in effect, to investigate itself in abuse and neglect cases.

Due to legal loopholes, which I’ll discuss below, DDS itself investigates all cases of abuse and neglect of persons over 60 with developmental disabilities who live in long-term care facilities operated or contracted by the Department.  As a result, the Department’s investigation of Perry case and its handling of it raise numerous questions.

By way of disclosure, Thomas Frain, president of COFAR’s Board, is representing Perry’s family in legal action against the state in the incident.  I haven’t consulted Attorney Frain in writing this post, other than to ask him for a copy of the DDS investigation report.

Among the questions raised by the Perry case that don’t appear to have been considered in the DDS report  are: Was it appropriate for Remillard to have been admitted to the Templeton Center in the first place, and was the overall level of supervision at the Templeton Center adequate? The DDS report didn’t even appear to consider whether the level of supervision of Remillard himself was adequate.  The report merely examined the actions of staff caring for Remillard in the moments prior to, and during, the alleged assault.

For instance, the DDS report noted that a Templeton staff member had “sat” on Remillard because he wouldn’t get up from a nap just before the alleged assault of Perry occurred, and told him he would not be given a sandwich if he didn’t cooperate.  There was a reference to a staff person “flicking” some water at Remillard as well.

The DDS report, which was based on statements taken from staff, stated that Remillard laughed in response to the staff person’s actions, got up and went to a bathroom to change his shoes. Then, on his way with a staff member to the an exit door in the dairy barn, Remillard suddenly spun around and shoved Perry, who had been standing nearby, toward the boiler, causing him to hit his head and fall to the floor.  The staff stated that Remillard’s action was so unexpected and sudden that there was nothing they could do to prevent it.

That may all be perfectly true, but in focusing entirely on the actions of staff immediately prior to the alleged assault, the DDS report missed the potentially more important questions noted above. The report did note that Remillard had a history of criminal assaults and threats, including threatening with a dangerous weapon and threatening to blow up a school,  and had a pending arson charge against him when he was admitted to Templeton. While at Templeton, he was verbally abusive toward staff and had assaulted staff members, according to the report. So, why not examine some questions that go beyond just what the staff at the time of the alleged assault did or didn’t do?

As we have pointed out many times, Templeton is one of several state-run facilities that have been either closed or significantly downsized in recent years, and the declining level of staffing and supervision in these facilities has been a source of concern.  It’s not surprising that DDS, which is heavily invested in closing and downsizing these facilities, would not want to examine any potential negative impacts of that downsizing.

For reasons like that, we have long argued in favor of providing more funding and resources to the Disabled Persons Protection Commission (DPPC), an independent agency, to investigate abuse and neglect complaints.  The DPPC, however, has been given such a limited budget and resources by the administration and Legislature that it is forced to refer most of the complaints it receives to DDS for investigation.  The DPPC is further prevented by statute from investigating allegations of abuse or neglect of individuals over the age of 60.

Because Perry was over 60, the DPPC referred the investigation of his assault to both DDS and the Executive Office of Elder Affairs, according to a DPPC official whom I emailed about the case.  The EOEA itself is prohibited by statute, however, from investigating abuse cases involving elderly persons in long-term care facilities such as developmental centers and group homes.

The result is that DDS has become, by default, the only agency with authority to investigate cases such as that of Perry in which an elderly person with an intellectual disability is allegedly abused in a long-term care facility.

The DPPC tried to rectify that situation as long ago as 1992.  A May 1994 directive from the then secretary of elder affairs expressed support for a bill filed that year by the DPPC that would have allowed the DPPC to investigate reports of abuse of elderly persons living in facilities operated or contracted by DDS.  The directive noted that similar legislation had failed to pass in the previous two years.  The 1994 bill wasn’t enacted.

A DPPC official said this week that the agency filed a bill again in 2000 that would have given it the authority to investigate abuse of elders in DDS facilities.  That bill failed as well, and the agency hasn’t tried again since.  It seems fairly clear that the DPPC realized it was going to get nowhere with legislation that would give it more investigatory authority at the expense of DDS.

For years, the DPPC has asked for more resources to enable it to hire more investigative personnel.  In our view, it has been DDS itself that has lobbied the Legislature against the DPPC’s common-sense recommendations to increase its investigative authority and resources, and has fought to keep the DPPC’s budget as low as possible.  It appears to be a political turf issue as far as DDS is concerned.

In the meantime,  it appeared earlier this year that the Legislature’s Children, Families, and Persons with Disabilities Committee might step in and take an independent look at the Perry case and the issues surrounding it.   Last January, we received a notice from the office of Representative Kay Khan, House chair of the committee, that the committee was planning an oversight hearing on the Perry case.  But despite a subsequent inquiry that we made to the committee, we never received any additional information about such a hearing.

On Monday, I emailed both Khan and her staff, and Senator Michael Barrett, committee Senate chair, and his staff, asking whether an oversight hearing on the Perry case is still planned and, if not, why it had been cancelled.    To date, I’ve received no response to those queries.