Archive

Archive for February, 2018

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.

Advertisements

17 years later, a man hopes some good will come of his brother’s scalding death in a DDS group home

February 9, 2018 5 comments

Richard Buckley desperately wanted an explanation as to how it was possible that his older, intellectually disabled brother could have received injuries in his group home that were serious enough to cause his death.

But no one, it seemed, wanted to listen to him, much less offer any answers to his questions.

On the morning of March 30, 2001, Richard’s brother, David, received second and third degree burns to his buttocks, legs, and genital area while being showered by staff in a West Peabody-based group home run by the Department of Developmental Services. The temperature of the water in the residence was later measured at over 160 degrees.

David Buckley headshot

David Russell Buckley

David died from complications from the burns some 12 days later, yet no one was ever charged criminally in the case, and the DDS (then Department of Mental Retardation) report on the incident almost unbelievably did not substantiate any allegations of abuse or neglect.

Before that shower incident, David had endured a series of incidents of alleged abuse and neglect in a corporate-provider-run group home in Hamilton, including an alleged sexual assault by a caregiver. That incident had been witnessed by another staff member of the home. Yet, the witness failed to report the alleged abuse for two weeks, and, as a result, no one was ever criminally charged in that case either. 

David, who was 39 years old when he died, had Down Syndrome and Obsessive Compulsive Disorder. He stood only 4 feet, 10 inches tall and weighed about 95 pounds.  He is described by his family as a loving man who enjoyed collecting harmonicas and Snoopy items from the Peanuts comic strip.

Richard Buckley attended last month’s oversight hearing on DDS care, which was held by the Legislature’s Children, Families, and Persons with Disabilities Committee. He had put his brother’s case aside for nearly 17 years. But when he heard that the committee was scheduled to hold the hearing, he decided he would attend and possibly testify, if only to help others in similar situations.

Yet the committee would not accept verbal testimony from Richard or any other families with similar stories of abuse and neglect. “It felt like the committee pretty much put on a dog and pony show, with the invited officials stating their policies and processes and no one really questioning them on any level,” Richard said. “There seemed to be a lack of willingness (on the part of the committee) to bring up important issues.”

But while Richard was disappointed in the hearing, he says he nevertheless remains inspired by those other families that have continued fighting for answers. In particular, he said, he is inspired by Anna Eves, who has been fighting relentlessly for changes in the DDS system in the wake of the near death of her son, Yianni Baglaneas, in a group home last April.

“The same types of abuse just keeps happening,” Richard said, “but Anna spearheaded a response to it that may create change. After hearing about that, I thought if they (Anna and the other families) can use my brother’s story in any way, I would send as much information about it as I could find. I want to do what I can do to follow up Anna’s work, which is phenomenal.”

For years following David’s death, Richard said, he and his family were too discouraged to do anything.

David’s father and sister, who were David’s co-guardians at the time, sued the state for $100,000, which is the maximum state liability under the Massachusetts Tort Claims Act. The state settled for that amount; but the state then kept all but $2,000 of the settlement as charges for David’s medical care.

Richard, who was not a party to the lawsuit, said what the family really wanted were answers, and they wanted those directly responsible for David’s death to be held accountable. 

Initially, there was word that the Essex County District Attorney’s office was investigating the case; but months went by, and the family could not get any information about it. In a letter to David’s father in July 2001, then state Representative Anthony Verga said he had been assured by the D.A.’s  office that “the case was on track and still under investigation.” Verga promised “to continue to help push for prosecution of the case.”

But the case was never prosecuted. The family was told by their attorney that the prosecution was ultimately called off after September 2001 because much of the D.A.’s resources had been diverted toward the investigation of the 9/11 terror attacks. The two airliners that hit the World Trade Center in those attacks had originated in Boston.

“I understand the logic behind putting their resources into the 9/11 case, that but doesn’t help our family’s closure. We were left in the dark,” Richard said. He said the family was also told by their attorney that the D.A. never actually wanted to investigate David’s case because “this was a case of the state prosecuting the state. It was considered a  lose-lose situation.”

Then in February 2002, the family received a copy of the DDS investigation report, which failed to substantiate any allegations of abuse. “The final finding was basically ‘we can’t prove anything, and therefore nothing happened,'” Richard said. “I was stunned by that conclusion.”

As time went on, the family received less and less information about David’s death.

“I remember calling people from various departments and getting some information that would give us glimmer of hope, and then we would not hear anything,” Richard said. At one point, he said, he was told to contact a DDS official who was located at Danvers State Hospital. “I sat in her office for eight hours waiting for her to come out, and she never appeared. I also left multiple messages with her. She didn’t want to talk to me.”

Richard said that he gradually lost hope that anything would be done about the case. “We finally had to walk away from it,” he said. “There was no need killing ourselves trying to be heard by people who didn’t want to hear us.”

Then when  he heard last month about the Children and Families Committee hearing and about Anna Eves’ efforts to bring her son’s case to light, he said he began to revisit David’s case for the first time in all those years.

Buckley case David and Richard photo3

David (left) and Richard Buckley  circa 1970 when David was about 10 years old and Richard was about 4.

Details of scalding case

(Please be advised that some of the details listed below are graphic.)

According to the DDS investigation report, David had woken up in his group home at 6:15 on the morning of March 30, 2001, and had defecated in his bed. When one of two overnight-shift staff members, who were identified in the report as alleged abusers, tried to guide him to the shower, he reportedly resisted.

One of the alleged abusers told the DDS investigator that she used one hand to hold David and used the other hand to spray him with a hand-held shower attachment in a tub in the bathroom.  She said the second alleged abuser held David’s other arm to keep him still.

The first alleged abuser stated that after the second staff member suggested the water might be too hot, she noticed that David’s legs looked red and immediately took him out of the tub and sat him down in bathroom where she noticed his legs peeling.  At that point, she said, she applied cold compresses to David’s legs and notified a nurse about the situation via a beeper. She estimated that she had sprayed David with the attachment for about 30 seconds.

The DDS report states that the beeper nurse asked the first alleged abuser whether she had checked the water temperature prior to showering David, and that the beeper nurse stated that the alleged abuser “did not really provide an answer.”

Two maintenance workers, who were called to the residence on the morning of the incident, noted that the water temperature in the bathroom initially read as high as 162 degrees and then dropped to 150 degrees. One of the workers further stated that the bottom cover to controls on a water tank in a back room of the residence was on the floor.

The American Society of Sanitary Engineering states that at a water temperature of 154 degrees or above, scalding of the skin is immediate.  Scalding would occur in 30 seconds at a temperature of 126 degrees.  

The DDS report stated that departmental regulations require that the water temperature in residential facilities must read between 110 and 130 degrees. The report noted that the water temperature in David’s group home had been found the previous December to be 158 degrees. Three maintenance reports prior to the shower incident indicated that the temperature was over the DDS limit.

According to the DDS report, no issues regarding the water temperature were identified in any DDS licensure reports for the group home.

The DDS investigative report stated that both alleged abusers in the shower incident left the residence after their shift ended at 7 a.m., and a new staff member arrived. That first-shift staff member stated that he thought David’s injuries looked serious and that he was shivering as if he might be in shock. The staff member notified an on-call nurse who came to the residence.

The on-call nurse stated that she observed reddened and peeling areas on David’s upper thighs, genital area, and buttocks, and that he screamed in pain when she tried to apply a compress to those areas. The nurse called 911 at 7:20 a.m., which was approximately an hour after David was first exposed to the hot water in the shower.

According to the DDS report, a physician at Massachusetts General Hospital, whose name was redacted, stated that he did not believe the one-hour delay in calling the ambulance “could have a significant effect on outcome” of David’s injuries.

The DDS report noted a number of inconsistencies between the accounts given by the two alleged abusers. For instance, while the first alleged abuser stated that that second alleged abuser had stayed in the bathroom during the entire incident and had held David’s other arm, the second alleged abuser denied that he had done so.

David was taken by ambulance to Massachusetts General Hospital and was transferred from the burn unit to the intensive care unit on the same day because he was having seizures and suffered respiratory arrest.

Richard said that while David was at Mass General, the family had to fight for adequate care for him even there. The family didn’t feel the doctors were willing to give David sufficient medication to reduce his pain.

Richard said, though, that the nurses did what they could. “They were phenomenal,” he said.

The death certificate stated that David died from “complications from a thermal injury.” Those complications included a sepsis infection and pneumonia.

The DDS report ultimately concluded that while evidence showed that the burns David received in the shower directly led to his death, there was not sufficient evidence that his injuries were “linked to an act or omission by caretakers.”

The report also concluded that while it was “concerning” that the water temperature of the shower exceeded DDS regulations, neither the landlord of the group home nor the maintenance staff are considered caretakers under state law, and therefore none of them could be found negligent.  There was insufficient evidence, the report added, to determine whether the staff or house manager of the group home had knowledge of an ongoing problem with spiking water temperature in the residence.

After David’s death, anti-scalding devices were placed on showers in the residence and the staff was instructed to monitor the water temperature prior to giving showers. The landlord, whose name was redacted in the report, was unwilling, according to the report, to replace the electric water heater in the residence with an oil-fired hot water heater even though the water temperatures were continuing to spike.

The report recommended that maintenance staff get training in adjusting water tanks and that additional staff including the house manager review maintenance records.

Despite the report’s conclusion that there was insufficient evidence to substantiate abuse or neglect in David’s death, Richard believes his death was the result of inadequate care if not intentional abuse.  

The DDS investigative report appears to leave many questions unanswered 

A review of the DDS report raises a number of questions, not only about the circumstances surrounding David’s death, but about the thoroughness of the investigation itself.

For instance, the DDS report noted that the Mass. General doctor had said that an hour delay in calling an ambulance in the case was likely not a factor in David’s death. As a result, the investigator concluded that the delay was not an omission in care.

Among our questions are: Did the investigator really press the doctor on his or her assessment that the delay in calling the ambulance was not an issue? David reportedly went into shock while waiting for the ambulance. Is it really possible that an hour delay in calling an ambulance wouldn’t make a difference in that case?

Who was the Mass. General medical expert consulted by the DDS investigator, and why was his or her name redacted in the report? Other names of staff, nurses and officials involved weren’t redacted.

Also, it seems there were a number of other questions that should have been asked of the medical expert, but weren’t.  For instance, it doesn’t appear the medical expert was asked what the temperature of the water would have had to have been to have resulted in the degree of skin damage that David suffered.

Other questions that appear to have gone unanswered by the report include the following:

  • How is it possible that one person could have held a person under scalding water for 30 seconds using only one arm? Wouldn’t it have taken two people to hold someone under those conditions?

(As noted, at least one of the alleged abusers said both of the staff members had held David while she showered him with a hand-held shower attachment. The second alleged abuser denied that was the case. The report acknowledged inconsistencies between the two alleged abusers’ accounts, but the investigator didn’t seem to press them to determine who was lying.)

  • Did the investigator ask the staff about David’s strength, agility, or ability to get away from one person holding him by one hand?
  • Why were there burns only on David’s legs, buttocks and genital area? Doesn’t that indicate those areas may have been intentionally targeted?
  • What does the report mean in stating that the first alleged abuser “didn’t really provide an answer” to the question whether she checked the water temperature prior to showering David?  If she refused to provide an answer to a question like that from a nurse, isn’t that, in itself, evidence of possible negligence?
  • Was everyone in the house questioned about the removal of the cover on the controls to the water heater at the time of the incident?
  • Had there been any other instances in the home of David or any other residents getting burned or complaining that the water was too hot? Were there any other injury complaints filed with the Disabled Persons Protection Commission about the home in that regard?
  • Is it possible that the reason David always resisted getting showered, and resisted that morning, was because the water was always too hot?
  • Is it really possible that David’s resistance or yelling did not intensify, as both alleged abusers claimed, when the scalding water was sprayed on him, thus warning the staff about a problem?

Previous allegations of abuse in provider-run group home

David was subjected to at least five previous alleged instances of abuse or neglect in a group home in Hamilton run by Turning Point, A DDS corporate provider, between 1996 and 1998.

In one i­­ncident in August 1998, a witness reported an alleged sexual assault of David by a caregiver in a bathroom of the group home. However, the witness did not report the incident to investigators until some two weeks after it allegedly occurred.

Due to the two-week delay in reporting the incident, a medical examination of David did not find evidence of sexual assault. No one was criminally charged in the case.

In an incident in February 1997, DDS did uphold allegations of mistreatment and abuse.  The alleged abuser, a probationary employee, allegedly initiated the incident by drinking a milkshake in front of David and telling him he couldn’t have any of the drink.

According to the DDS report, David became upset and agitated over the denial of the milkshake, and threw a telephone across the room and then refused an order from the alleged abuser to pick it up. The alleged abuser at one point dragged David into the living room and put his foot on his chest, according to a witness. David received a small cut on his forehead in the incident.

Recalling the incident, Richard said his brother, who was largely mute, would often pick up a telephone when the two of them got into childhood spats with each other, and would indicate he was calling the police on Richard. “When he threw the phone (in the incident in the group home), he was telling on his caretaker,” Richard said. “But no one listened to him. No one took the time to know his language.”

The alleged abuser was found to have violated David’s treatment plan, which called for positive reinforcement, not force. Allegations of mistreatment and abuse were substantiated by DDS, although emotional abuse was unsubstantiated. The alleged abuser in that case was subsequently terminated from employment with the provider.

In a third incident in December 1996, David came home for Christmas with a temperature of 103 degrees and a bad cough. His weight was down to 80 pounds.

The DDS report on the incident stated that the group home staff claimed to be unaware that he was sick. On December 27, David was brought to a doctor and diagnosed with pneumonia.

Staff and employees interviewed said David did not appear to be ill. Allegations of neglect of care were found to be unsubstantiated.

“The closest person I know in life”

In an email sent to friends and family members while David was dying from the burns inflicted in the showering incident, Richard wrote that his older brother “is the closest person I know in life, and we grew up fairly inseparable. He has Down Syndrome, Autism, and various other challenges. But that is irrelevant in how much he means to me.”

Richard added, “My brother is just an innocent, a vessel of love. He only reacts to the outside world in kind. If he loves, it is because he has felt love. If he hurts, it is because someone has hurt him…”

Once again, we are calling on the Children and Families Committee to hold another hearing to listen to Richard and the many other families who have had similar experiences in the DDS system.

For far too long, few, if anyone, in positions of authority in the state have been willing to listen to these families.