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DPPC ordered to clarify its abuse reporting system following data inflation admission

April 16, 2019 Leave a comment

In the wake of an acknowledgement by the Disabled Persons Protection Commission (DPPC) that some of the data it had provided COFAR on abuse may be inflated, the state’s public records supervisor has ordered the agency to clarify the nature of the data it publishes.

The April 12 decision by Public Records Supervisor Rebecca Murray is in response to an appeal filed by COFAR after the DPPC stated that it was unable to provide data on the actual number of “abuse allegations” the agency receives each year and the number of such allegations that are substantiated by investigations.

In emails in March, Andrew Levrault, DPPC assistant general counsel, stated that spreadsheet data on abuse complaints and investigations, which the DPPC had previously provided to COFAR, “may be inflated.” He later stated, in a response to COFAR’s appeal, that the DPPC’s data may be “deflated” in some other instances.

Levrault said that the probable data inflation occurred because the agency does not track actual abuse allegations, but rather tracks abuse “intakes,” which are calls made to the agency. He said there may be “multiple” intake calls for each allegation, and that the DPPC is unable to “extract” the number of actual allegations that the agency receives.

Levrault’s statements appear to leave it unclear whether data listed in the DPPC’s annual reports accurately represents the number of abuse allegations or incidents that the agency is informed of or investigates. Levrault did claim in an email that the numbers in the annual reports are not inflated.

In her April 12 decision, Murray stated that while the DPPC has noted that it cannot extract data by allegation, “the DPPC did not clarify whether it could produce the data to back up the numbers DPPC uses to draft its Annual Reports.”

Murray noted that COFAR has questioned “how it is possible that DPPC is able to report the number of abuse reports and number of investigations, if it cannot extract that data from its database. I find that DPPC must clarify this.”

In an email on March 14, Levrault acknowledged deficiencies in the DPPC’s abuse tracking system. He stated that:

…our current method of data extraction can produce duplications when multiple intakes are received on the same incident.  The database is undergoing a redesign process, and this is one of the features we are hoping to improve.

Later, in an April 8 response to COFAR’s records appeal, Levrault stated that when compared to the record keeping system used by the Department of Developmental Services (DDS), to which the DPPC refers many of the abuse complaints it receives:

… the DPPC’s figures may be elevated in some instances, and may be deflated in others–depending on the nature of the comparison.

Yet, when asked by COFAR, also on March 14, whether the numbers of “abuse reports” listed in the DPPC’s annual reports are therefore likely inflated, Levrault replied that the numbers in the annual reports “are not inflated. They are consistent with our long-standing statutory reporting requirements, which mandate that we report the ‘number of claims of abuse.’ (emphasis in the original)

Levrault did not explain how it could be the case that the DPPC is able to report accurate or non-inflated numbers in its annual reports if the agency is unable to track or extract data on abuse allegations, and tracks only data on intakes.

The DPPC’s most recent annual report for Fiscal Year 2017 states that the agency received 11,395 “abuse reports” that year, and that it had “screened in” 2,571 of those reports for investigation by the DPPC itself and other agencies.

The annual report stated that the same number of 2,571 “investigations” was assigned to investigators from the DPPC, the Department of Developmental Services, the Department of Mental Health, and the Massachusetts Rehabilitation Commission, and that those investigators had completed 1,866 of those investigations.

It is unclear whether the 11,395 “abuse reports” cited in the 2017 annual report is a reference to intakes or to allegations.  However, given that the annual report refers to 2,571 of those 11,395 abuse reports as representing “investigations,” it would appear that the number 11,395 does refer to actual allegations.

If, however, it is the case that the spreadsheet data provided to COFAR by the DPPC is inflated, it would render that data virtually useless in attempting to determine the number of abuse allegations that agency receives and investigates each year.

However, Levrault also stated in a separate email on March 14 that:

Each intake received by the DPPC is assigned a separate case number.  If the DPPC receives multiple intakes involving the same allegation and the allegation meets the DPPC’s jurisdiction, then the intakes will be combined for investigation.  Moving forward, the DPPC case would then be identified by the combined intake numbers. (my emphasis)

That statement by Levrault appeared to imply that the agency does, in fact, keep documentation on the number of abuse cases that it either investigates or refers to other agencies for investigation.

As a result, COFAR asked the DPPC on March 15 for the number of abuse allegations and investigations resulting from intake reports that the DPPC had “combined for investigation.” When Attorney Levrault responded that the DPPC had no responsive records to that request, COFAR appealed the matter to the state’s Public Records Supervisor.

DDS does track abuse allegations

As noted, Levrault stated in his April 8 response to COFAR’s appeal that unlike the DPPC, DDS does have the capability of tracking individual abuse allegations or cases. The DPPC refers the majority of the abuse complaints it receives to DDS for investigation.

COFAR has previously reported that the DPPC actually has a lower abuse-allegation caseload per investigator than DDS, and that the DPPC has substantiated a higher percentage in recent years of the allegations it has investigated itself than has DDS.

In reporting those percentages, COFAR was assuming that the DPPC was consistent in reporting the number of allegations it was investigating itself, and the number of allegations that DDS was investigating.

In the past year, we have been battling with the DPPC over the transparency of the agency’s investigative policies. We think our latest appeal concerning the data the DPPC publishes underscores the need for a major review and overhaul of those policies and procedures. 

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Mother pushes for medical training bill after her son dies following a seizure

February 11, 2019 Leave a comment

Maureen Shea’s son, Tommy, had just returned on June 7, 2017, from a two-week stay in a hospital to his staffed studio apartment.

Tommy, who was 33, had an intellectual disability and was subject to epileptic seizures while asleep. His bedroom was equipped with an audio and visual monitor that could alert the staff so that the staff could make sure during a seizure that Tommy didn’t roll over face-down — a position that can prevent breathing.

Anna and Maureen3

Maureen Shea (right) talks with COFAR Vice President Anna Eves prior to a hearing by the MDDC last week on legislative proposals this session concerning the developmentally disabled. Shea is pushing for a bill that would ensure that residential facility staff are adequately trained to use medical equipment needed by the facility residents.

Maureen and her daughters were concerned that the residential staff did not regularly check the monitor’s batteries and that they had not been adequately trained in how to position the device. But provider managers had repeatedly assured Maureen that the staff were being trained and were knowledgeable about Tommy’s medical equipment.

On June 8, 2017, Maureen received a call from the residential supervisor to come to the residence immediately. When she arrived, the police were there. They told her that Tommy had died and that he had been found face-down on his bed. The batteries in the monitor were later found to be dead.

Last week, Maureen recounted her experience at a hearing held by the Massachusetts Developmental Disabilities Council (MDDC) on bills concerning persons with developmental disabilities. The bills have been filed in the new 2019-2020 legislative session.

Maureen and her family have proposed one of those bills. It would require that when a disabled individual is discharged from a hospital to a residential facility, a licensed medical professional from the facility must review and acknowledge the full requirements of the hospital discharge plan regarding any life support or other medical equipment. The medical professional must then advise the residential staff about those requirements.

That bill (SD 1176), which was filed by Senator Patrick O’Connor, Maureen’s state senator, is one of several legislative priorities for COFAR as well. At the MDDC hearing, we presented those priority bills, including a measure to make information about care in the DDS group home system more available to the public. We’ll have more information on those bills in our next post.

Staff was required to check monitor

As of early June 2017, Tommy had spent two weeks in a hospital for treatment of chronic vomiting due to migraines. Maureen was nervous about his return to his apartment because he had had four epileptic seizures in his sleep during the year and a half he had been living there.

Tommy’s Individual Support Plan (ISP)stated in a number of places that staff would check his monitor every day, Maureen said. She and her daughters waited 11 months for the results of the autopsy, which concluded that Tommy had died of cardiac arrest with epilepsy as a contributory cause.

Maureen said that prior to Tommy’s death, she had to enlist the Disability Law Center to represent her in an effort to force the program staff provider to agree to provide a van for Tommy’s transportation with a non-smoking driver. He had life-threatening asthma.

Tommy’s case recalls that of Yianni Baglaneas

Unfortunately, the apparent failure of the group home staff in Tommy’s case to check his seizure monitor recalls the case of Yianni Baglaneas, the son of Anna Eves, now COFAR’s vice president. Yianni nearly died in April 2017 after aspirating on a piece of cake in a group home in Peabody.

An investigation by the Department of Developmental Services found that the staff of Yianni’s group home had failed to to ensure that he regularly used a portable breathing mask at night called a CPAP (continuous positive airway pressure) machine. Based on the input of a medical expert, the report concluded that the failure to use the machine was the cause of the aspiration that led to Yianni’s near-fatal respiratory failure.

Family members all-too-frequently find that they must take the lead in trying to ensure that their loved ones are safe and well cared for in the system; but when providers and the Department itself aren’t willing or able to match that diligence, the outcomes are too often tragic.

We hope the Legislature’s Children, Families, and Persons with Disabilities Committee will act favorably on Maureen’s bill and ensure that it moves toward passage. The Committee also needs to continue its investigation of the DDS system, which was begun a year ago, and which does not appear up to now to have made much progress.

Ultimately, DDS needs to cooperate fully with the legislative investigation and show it is committed to fixing the system. Passage of Maureen’s bill is one of many steps that need to be taken by the Legislature in the meantime.

 

New data provide more evidence that the DPPC should do all abuse investigations

January 15, 2019 1 comment

New data provided by the Massachusetts Disabled Persons Protection Commission (DPPC) and the Department of Developmental Services (DDS) raise further questions about the ability of DDS, in particular, to adequately investigate cases of abuse and neglect within its system.

As such, we think the data provide yet a further reason to place all investigative resources and functions within one independent agency — the DPPC.

The latest data, received under Public Records Law requests to both agencies, show that not only does the DPPC have fewer abuse investigators than does DDS, but the DPPC investigators themselves appear to have lower caseloads than do their counterparts at DDS.

Yet, the DPPC is the state’s sole independent agency charged with investigating abuse and neglect of disabled adults. As we have reported, the DPPC is so poorly funded that it has to refer most of the complaints it receives to DDS and other service-providing agencies to investigate.

The caseload data comes on top of previous data we received showing that the DPPC investigators tend to find that a higher percentage of abuse allegations have merit than do their counterparts at DDS. Given the DDS caseloads are higher than the DPPC’s, it appears possible that DDS investigators aren’t able to do investigations as thoroughly DPPC investigators.

The latest data obtained from DDS and the DPPC also show that the number of substantiations of abuse allegations in general has been dropping in investigations done, particularly by DDS.

DDS’s main function is to manage and oversee care to the intellectually and developmentally disabled through a network of both state-operated and corporate provider-operated group homes and other facilities. Because of that, DDS appears to face a conflict of interest in investigating allegations of abuse and neglect in its own system.

Higher DDS caseloads

The chart we created below shows the consistently higher average caseloads that DDS investigators have had compared with the DPPC’s investigators, although the DPPC’s caseloads have been rising in recent years.

Between Fiscal 2010 and 2018, DDS’s yearly caseload has averaged 51.9 abuse investigations per investigator, while the DPPC’s average caseload has been 27.9.  (DDS has employed an average of 31.4 abuse investigators each year while the DPPC has employed an average of 4.6 investigators each year in that time frame.)

chart on dppc and dds investigation caseloads fy10-18

Source: DPPC and DDS data

Based on the DPPC’s data, our second chart below depicts the dropping abuse substantiation rate each year for both the DPPC and DDS.

chart on total dppc and dds abuse substantiation rate fy 04-18

According to the data, the annual percentage of abuse allegations that have been substantiated by DDS and the DPPC dropped from a high of 28% in Fiscal 2006 to about 13% in Fiscal 2018. The conclusion we draw from this particular data is that funding to both agencies for investigations has been increasingly inadequate.

The DPPC’s higher abuse substantiation rate since Fiscal 2012

The data going back to Fiscal 2004 show that the DPPC began consistently substantiating a higher percentage of abuse allegations than DDS starting in Fiscal 2012. There were three years between Fiscal 2004 and 2011 in which DDS substantiated a higher percentage of allegations than did the DPPC.

There don’t seem to be clear reasons for either the relatively higher abuse substantiation rate by the DPPC or the dropping substantiation rate by DDS, in particular, although, as noted, one reason might be DDS’s relatively high caseloads.

The DPPC’s policy to reserve more serious cases for itself

It’s possible that the DPPC has had a higher abuse substantiation rate because the agency has tended to reserve what might be considered the most serious abuse cases to itself, and that those more serious cases would be more likely to be substantiated than would the less serious cases assigned to DDS.

At first glance, a policy document we received from the DPPC on assigning cases would seem to support that theory.  The policy lists a number of instances in which the DPPC assigns more serious cases to itself provided that it has the resources to do so.

But the DPPC policy is dated 1998. There doesn’t seem to be a clear pattern of abuse substantiations from either the DPPC or DDS that lines up with the policy or its revisions in 2013 and 2016.

DDS says DPPC substantiation data misleading

In a response earlier this month to our questions, DDS maintained that the data we used from the DPPC doesn’t reflect the true abuse substantiation rates for DDS.

The DDS response included a lengthy explanation for why this is so, but the gist of the explanation seems to be that the DPPC data doesn’t account for all of the cases that DDS investigates, and that the DPPC counts the cases differently than DDS. We don’t think, however, that any such differences would affect the overall results of our analysis because we used the DPPC’s substantiation-rate data for both the DPPC and DDS, and we are assuming that the DPPC has been consistent in how it accounts for the cases investigated by both agencies.

The DDS’s conflict of interest

As we’ve stated, the data point toward the logic of having all abuse investigations done by one independent agency. The current system under which abuse investigations are done by separate agencies makes no sense, and leads at the very least to the perception that the investigations done by DDS are not thorough and cannot be relied upon.

As we reported in our January 2004 issue of The COFAR Voice, the DPPC itself issued a position statement at that time charging that DDS (then the Department of Mental Retardation) and other state agencies were “vulnerable to pressures that could compromise the integrity of their investigative findings (in abuse cases).”

Filing legislation to place in investigative resources solely within the DPPC

We will share our findings regarding the DPPC and DDS investigation data with the Legislature’s Children, Families, and Persons with Disabilities Committee. We hope these findings will concern them as much as they concern us.

We are also seeking to file legislation in the current legislative session to place all resources for abuse and neglect investigations within the DPPC, and to place all DDS provider licensure and monitoring resources within an independent state Office of Quality Assurance.

The Children and Families Committee initiated a review of the DDS system in January of 2018 and called in the DDS commissioner and DPPC executive director on two occasions last year to testify about abuse and neglect in the DDS system. Both officials insisted the system is functioning smoothly and offered no suggestions for changing it.

The families in our organization know that the system isn’t fine and it isn’t running smoothly.  The Children and Families Committee, however, has not allowed those family members and guardians to testify publicly about their experience with the system.

We hope things finally begin to change in the new legislative session, which just started this month, and that the Legislature will begin to take concrete steps to protect the developmentally disabled in this state from abuse and neglect.

A clear starting point would be to give the DPPC, the state’s independent abuse investigation agency for the disabled, the necessary tools and authority to do the job.

DDS lags independent DPPC in abuse substantiations

December 18, 2018 1 comment

Although the state Department of Developmental Services investigates far more abuse allegations of the developmentally disabled in Massachusetts than does the independent Disabled Persons Protection Commission (DPPC), DDS found a lower percentage of the allegations to have merit than did the DPPC between Fiscal Year 2015 and the present, data provided by the DPPC show.

While the DPPC is technically the lead state agency in investigating complaints of abuse and neglect of the disabled in the state, the agency is so poorly funded that it is forced to refer most of the complaints it receives to DDS and other agencies to investigate.

As the chart below shows, the DPPC “substantiated” an average of 22.7% of the abuse allegations that the agency itself investigated from Fiscal Year 2015 through 2019. During that same time period, DDS substantiated an average of only 13.6% of the allegations that the Department itself investigated.

The chart is based on the DPPC data, provided to COFAR under a Public Records Law request.

Chart on DPPC and DDS substantiated abuse cases

When allegations of abuse are substantiated, DDS and its corporate providers of care are usually required to take corrective measures, which can include providing training, changing procedures, and barring alleged abusers from further employment in the system. The DPPC has a separate State Police Detective Unit that refers some of the allegations to local district attorneys offices for separate criminal investigation and prosecution.

The DPPC, which was established in 1987 as an independent agency to investigate allegations of abuse and neglect of adults with intellectual and other disabilities, had only four investigators on its staff (not counting the State Police Unit) as of Fiscal Year 2017, according to its latest online annual report. Despite that, the agency received more than 11,000 reports of abuse of the disabled that year, according to the annual report.

According to the DPPC data, the agency itself investigated an average of only 144 abuse complaints per year between Fiscal Years 2015 and 2018, the last year for which complete data were provided. During that same period, the DPPC referred an average of 1,743 complaints per year to DDS to investigate.

But while DDS does have more investigative resources than the DPPC, DDS’s main function is to manage and oversee care to the intellectually and developmentally disabled through a network of both state-operated and corporate provider-operated group homes and other facilities. As such, DDS appears to face a conflict of interest in investigating allegations of abuse and neglect in its own system.

The DPPC data for Fiscal 2019 are only partial so the percentage of substantiated cases between the DPPC and DDS may not vary as widely as of the end of the year as they appear to do now. But there seems to be a pattern going back to Fiscal 2015 that verifies concerns we’ve raised that DDS has an incentive to downplay complaints of abuse and neglect in its own facilities, whether they are state or provider-operated.

The DPPC doesn’t appear to want to talk with us. Neither Nancy Alterio, the executive director of the agency, or anyone else there has agreed to several requests for an interview.

Apparently, very little has changed since 2004 in the relationship between the DPPC and DDS except that prior to at least that year, DPPC officials were willing to state publicly that DDS was compromised in investigating abuse within its own system.

The January 2004 issue of The COFAR Voice noted that the DPPC had issued a position statement charging that DDS (then the Department of Mental Retardation), the Department of Mental Health, and other state agencies were “vulnerable to pressures that could compromise the integrity of their investigative findings (in abuse cases).”

There have been instances, the DPPC statement noted, in which information contained in investigative reports had been altered “to absolve the service-providing agency from liability.”

The DPPC statement added that among the reasons that the DPPC should conduct abuse investigations internally were that it would lend integrity to the investigation process and would provide a “political safety valve” to other agencies, whose own investigations might otherwise be branded as “whitewashes.”

The DPPC statement even compared the investigations of abuse by service-providing agencies to the recent sex abuse scandal within the Catholic Church in which the system had “closed its eyes to its failings and attempted to protect itself by protecting the wrongdoers within it.”

Thomas J. Frain, COFAR’s president, is also quoted in the 2004 article, as saying, “DMR is dependent on these providers for services and is going to be very reluctant to sanction them for either poor service or abuse. We need an independent organization like the DPPC to do this.”

Seeking additional information

Last week, we asked the DPPC for additional data, including:

  1. The number of investigators employed by DDS and the DPPC to investigate complaints of abuse  from Fiscal Year 2004 to the present.
  1. Any written agreements between the DPPC or DDS or written policies or guidelines that concern the process of determining which abuse complaints are assigned for investigation by the DPPC and which complaints are assigned for investigation by DDS.

We have also asked both the DPPC and DDS for comment on the data showing a higher percentage of substantiation of abuse complaints by the DPPC. So far, we have not heard back from either agency on that question.

And we’ve asked the DPPC whether they stand by the agency’s statement prior to 2004 that the agency should have the resources to conduct all abuse investigations internally. We’ve asked DDS as well whether they agree that the DPPC should conduct all abuse investigations.

We’ll be back here to report on the answers we get from each agency. It’s certainly possible that the DPPC and DDS will provide a reason we haven’t thought of as to why the abuse substantiation rates differ between each agency. (We would note that the overall percentage difference between 2015 and the present appears to be large enough that it is likely not due to chance alone.)

Whatever that reason given, if a reason is given, for the difference in the substantiation percentages might be, we’ll report it. But the perception of a conflict of interest remains in having the DDS investigate its own system. Thirty-one years after the creation of the DPPC, that needs to be changed.

 

Committee airs testimony on sexual abuse of the disabled, but offers little indication of its next steps

November 1, 2018 3 comments

While members of a legislative committee heard testimony on Tuesday about sexual abuse of the developmentally disabled in Massachusetts, the state lawmakers on the committee gave little indication as to what they plan to do with the information.

COFAR was one of several organizations invited by the Children, Families, and Persons with Disabilities Committee to testify. The committee members asked no questions of any of the three members of COFAR’s panel, who testified about serious and, in one case, fatal abuse of their family members in Department of Developmental Services-funded group homes.

Children and Families hearing 10.30.18

Tuesday’s hearing on sexual abuse in the DDS system. The committee members asked no questions of COFAR’s panel.

COFAR President Thomas Frain, Vice President Anna Eves, and COFAR member Richard Buckley also offered recommendations to the committee, including establishing a registry of caregivers found to have committed abuse of disabled persons, and potentially giving local police and district attorneys the sole authority to investigate and prosecute cases of abuse and neglect.

The hearing drew some mainstream media coverage (here and here); but, while COFAR had alerted media outlets around the state to the hearing, most of the state’s media outlets, including The Boston Globe, did not cover it.

Committee asks no questions

Following the hearing, Frain said he was glad to get the opportunity to testify, but frustrated that the members of the committee seemed to lack interest in what he and COFAR’s other panel members had to say.

“It crossed my mind, were the committee members told not to ask any questions?” Frain said. “How divorced and disengaged is the Legislature that they can hear this testimony and not even have a follow-up question about an agency they’ve voted to fund?”

The hearing was the second since January involving testimony invited by the Children and Families Committee on the Department of Developmental Services system. The general public was allowed to attend, but not permitted to testify publicly before the committee in either hearing. The committee has given no information regarding the scope of its review of DDS.

COFAR has continued to ask for information from the committee as to the full scope of its review, and whether the committee intends to produce a report at the end of that review.

COFAR panel describes abuse and neglect

On Tuesday, Richard Buckley testified about his 17-year quest for answers to his and his family’s questions about his brother’s death in a group home in West Peabody in 2001. Buckley’s developmentally disabled brother, David, had previously been sexually abused in a group home in Hamilton, and was ultimately fatally injured in the group home in West Peabody.

David Buckley received second and third degree burns to his buttocks, legs, and genital area while being showered by staff in the West Peabody residence run by the Department of Developmental Services. The temperature of the water in the residence was later measured at over 160 degrees.

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 did not substantiate any allegations of abuse or neglect.

Richard Buckley urged the committee to take action to reform the DDS system. “If nothing is done, the next rape, assault or death, will be on you,” he said. “And we will remember that.”

Buckley also read testimony from another COFAR member, Barbara Bradley, whose 53-year-old, intellectually disabled daughter is currently living in a residence with a man who has been paid by a DDS-funded agency to be her personal care attendant. In her testimony, Bradley said the man initiated a sexual relationship with her daughter, and later brought another woman, with whom he also became sexually involved, to live in the same residence.

Anna Eves discussed the near-death of her son, Yianni Baglaneas, in April 2017, after he had aspirated on a piece of cake in a provider-operated group home. The group home staff failed to obtain proper medical care for Yianni for nearly a week after he aspirated. He was finally admitted to a hospital in critical condition and placed on a ventilator for 11 days.

DDS later concluded that seven employees of Yianni’s residential provider were at fault in the matter. Nevertheless, at least two of those employees have continued to work for the provider, Eves said.

“The systems that are in place are not working and we are failing to protect people with intellectual and developmental disabilities in Massachusetts,” Eves testified. “We have to do better.”

Eves urged the committee to support a minimum wage of $15 an hour for direct care workers, more funding for the Disabled Persons Protection Commission, and passage of “Nicky’s Law,” which would establish a registry of caregivers found to have committed abuse or neglect. Such persons would be banned from future employment in DDS-funded facilities.

Eves also noted that licensing reports on DDS residential and day program providers that she reviewed — including the provider operating her son’s group home — did not mention substantiated incidents of abuse or neglect. She said Massachusetts is falling behind a number of other states, which provide that information to families and guardians.

In his testimony, Frain also urged the committee to support more funding for the Disabled Persons Protection Commission, the state’s independent agency for investigating abuse and neglect of disabled adults. Because the agency is so grossly underfunded, he suggested that the committee consider either “fully funding” the agency or “partnering with the local police and district attorneys’ offices and let them investigate” the complaints.

Frain maintained that staffs of corporate providers, in particular, face pressure not to report complaints to the DPPC, and that the agency, in most cases, has to refer most of the complaints it receives to DDS. That is because the DPPC lacks the resources to investigate the complaints on its own.

Moreover, Frain maintained, the current investigative system is cumbersome. It can sometimes take weeks or months before either the DPPC or DDS begins investigating particular complaints, whereas police will show up in minutes and start such investigations immediately.

Frain also contended that “privatization of DDS services has been at the root of many of these problems.”

Other persons and organizations that testified Tuesday included DDS Commissioner Jane Ryder, the Arc of Massachusetts, the Massachusetts Disability Law Center, and the Massachusetts Developmental Disability Council.

COFAR is continuing to urge the Children and Families Committee to hold at least one additional hearing at which all members of the public to testify publicly before the panel. COFAR has also been trying to obtain a clear statement from the committee as to the scope of its ongoing review of the Department of Developmental Services.

For a number of years, COFAR has sought a comprehensive legislative investigation of the DDS-funded group home system, which is subject to continuing reports of abuse, neglect and inadequate financial oversight.

In accordance with his wish, Donald Vitkus is laid to rest in cemetery of the former Belchertown State School

June 24, 2018 2 comments

“We are powerless to consecrate this ground. The people laid to rest here have all consecrated it.”

Those were the words of Donald Vitkus’s grandson, William, as Donald’s ashes were interred Saturday following a memorial service at the Warner Pine Grove Memorial Cemetery for residents of the former Belchertown State School.

It was Donald’s wish that he be buried along with his “brothers and sisters” in the “Turkey Hill” cemetery.

Beneath the tall pines that protectively ring the small cemetery enclosure, some 70 people gathered for the memorial service in which family, friends, and fellow advocates for the developmentally disabled spoke with eloquence about the impact Vitkus had on their lives.

Vitkus ceremony1

Members of Donald Vitkus’s family at Saturday’s memorial service. His wife, Patricia, is in the center.

Vitkus, who died of a brain tumor in January at the age of 74, lived a life that took him from the notorious state school to a tour of duty in Vietnam, a first marriage that failed because he was unable to relate emotionally to his wife and children, and a later reconnection with his son, David, and other members of his family.

Vitkus was married in 1995 to his second wife, Patricia, who was in attendance at Saturday’s ceremony. In his later years, he became a passionate advocate for the developmentally disabled.

At the age of six, Vitkus was sent to Belchertown by foster parents, and remained there until he was “paroled” at the age of 17. The institution, which was closed in 1992, was one of many such facilities in Massachusetts that became the targets of a federal class-action lawsuit, Ricci v. Okin, which brought about significant upgrades in care and services in facilities throughout the state.

At Saturday’s memorial service, the speakers included Vitkus’s son, David, granddaughter, Helena, and grandson, William. Among the others who spoke were Department of Developmental Services Commissioner Jane Ryder, and Edward Orzechowski, who became a close friend of Vitkus’s while writing You’ll Like it Here, a book about Vitkus’s life at Belchertown and afterward, as Vitkus struggled to overcome the scars left from his experience at the institution.

In March of this year, Vitkus was posthumously given the Benjamin Ricci Commemorative Award at an annual Statehouse award ceremony, which recognizes the accomplishments of individuals served by DDS and the dedication of caregivers and advocates.

In 2005, Vitkus received an associate degree in human services from Holyoke Community College. It was there that he organized a speaking event that same year for Ben Ricci, the original plaintiff in Ricci v. Okin and the author of Crimes Against Humanity, a landmark book about Belchertown and the filing of the lawsuit.

Orzechowski, who attended the 2005 speaking event, said Vitkus approached him there, and asked him to write a book about his experience at Belchertown. At Saturday’s ceremony, Orzechowski said Vitkus had later quipped that he had organized the speaking event for Ben Ricci in order to score “brownie points”  to boost his G.P.A. at the community college.

Ryder said she has provided a copy of Orzechowski’s book to every member of the DDS senior management. “We need to always be vigilant about the services and staff and to question the experts,” Ryder said. “We need to listen to the individuals and their families.”

Vitkus ceremony2

Friends and family at Saturday’s memorial service for Donald Vitkus

Orzechowski stood silently before speaking and then recounted several anecdotes about Vitkus, some of which are in Orzechowski’s book, and others that occurred when Vitkus and Orzechowski went on speaking and book signing tours together after You’ll Like it Here was published in 2016.

Orzechowski recalled how Vitkus had always resisted authority, even biting off part of an attendant’s finger at Belchertown after the attendant had tried to stuff anti-psychotic medications down his throat. Vitkus spent 34 days in solitary confinement as a result.

Orzechowski also recounted how Vitkus had escaped twice from Belchertown, and was picked up each time by the same police officer, who took him for ice cream the second time before returning him to the facility.

William Vitkus, who, like Helena, recalled Donald as a loving grandfather, said the question had “gnawed” at him as to why he had asked to be buried in a cemetery for residents of an institution that was an “ugly place with bad memories.”

“He (Donald) had spent his whole life trying to prove he never belonged (at Belchertown),” William said.  “Why should the state school now get to keep him?”

William said that he finally came to realize that it wasn’t the institution, but the residents there with whom Donald felt a life-long kinship, and that he felt he was “no different than the people buried here. They were his family.

“We’re here,” William added, “to help him (Donald) fulfill his last act of advocacy — a last stick in the eye to all who told him and his brothers and sisters that they would amount to nothing.

“There is no more sacred spot for my grandfather to rest,” William continued. “We are powerless to consecrate this ground. The people laid to rest here have all consecrated it.”

Donald Vitkus’s son, David , a former Northampton police officer, talked about how Vitkus had initially been unable to relate to his family because of the emotional scars from his childhood. “He was lacking in the nurturing we all got,” David Vitkus said. “He was aloof and couldn’t express his feelings.”

But David noted that Vitkus later overcame that inability to relate, and reconnected with him. The father and son then embarked on a literal search for Donald’s past, which took them to the Belchertown institution, which was then in the final process in the early 1990s of closing.

David described his father as a humble man who “was always keenly aware of the opportunities he received that others simply didn’t….I think he would want me to say one last thank you for being there for him. So thank you very much.”

State Public Records supervisor reverses self, upholds secrecy of DPPC reports

May 23, 2018 2 comments

In a reversal of her earlier decision, the state’s Public Records Supervisor has issued a final determination that the state Disabled Persons Protection Commission can keep investigative reports about the abuse or neglect of any “identified individual” secret.

We were surprised and disappointed by the final decision by Public Records Supervisor Rebecca Murray, which was issued on April 20. It may become nearly impossible for the public to learn the outcomes of many, if not most, investigations of abuse and neglect of developmentally disabled persons as a result.

On May 16, Murray declined my request that she reconsider and restore her original March 22 order to the DPPC. That original determination had appeared to recognize at least some DPPC reports as public records.

In her final decision on April 20, Murray focused on one exemption to the Public Records Law [known as “Exemption (a)”], which appears to us to give blanket authority for the enactment of statutes and regulations that can potentially exempt all records of particular state agencies from disclosure.

Murray’s interpretation of Exemption (a), in our view, could establish a precedent under which blanket secrecy laws and regulations could be enacted on behalf of agencies throughout the state government. That would be the case even though the Public Records Law supposedly establishes a presumption that all governmental records are public and that exceptions to that rule must be considered on a case-by-case basis.

Murray’s two contradictory decisions stem from an appeal I filed in February based on my request to the DPPC for investigative records regarding the death of Karen McGowen, a client of the Department of Developmental Services.  Ms. McGowen was killed in an apparent accident last November. She reportedly fell from a wheelchair lift while getting out of a van at her DDS-funded day program in Pittsfield.

The DPPC, which is charged with investigating or supervising investigations of abuse and neglect of disabled adults under the age of 60, confirmed it was investigating Karen McGowen’s death.

DPPC HQ

DPPC headquarters in Braintree (Google Maps image)

On February 13, the DPPC denied my request for the records in the case, stating that the investigation was incomplete. But in denying the records, the DPPC’s assistant general counsel stated that even when the investigation was completed, any records the Commission had on the case would be exempt from public disclosure and that I would need permission from Ms. McGowen’s legal representative to obtain them.

The problem, as I stated, is that even if we were able to find Ms McGowen’s legal guardian, that individual, if he or she exists, would have to agree to authorize the release of the records in the case to us. That effectively nullifies these as public records.

In denying the records, the DPPC cited Exemption (a) as well as other exemptions to the Public Records Law, arguing that because I had sought records “regarding an identified individual and (because) redaction of personal data would be insufficient to protect existing privacy interests, … the responsive materials in their entirety cannot be disclosed.”

In her prior decision on March 22, Murray had determined that none of the exemptions cited by the DPPC applied in the case because the DPPC had provided no specifics to explain why it would not be possible to protect the various parties’ privacy interests through the redaction of names and other identifying material.

Murray had gone on to state that the DPPC “bears the burden to prove with specificity any exemption (to the Public Records Law) that applies.”

However, in her April 20 decision, Murray no longer noted the DPPC’s lack of specificity. She concluded, in  discussing Exemption (a), that the DPPC’s enabling statutes and regulations:

 …provide that the records of the Commission are not public records … Additionally, the regulations provide that the Executive Director, General Counsel and/or designee has the discretion to determine if records subject to disclosure should not be disclosed due to the specific nature of the request (my emphasis).

It seems to us that to the extent that Exemption (a) — or at least Murray’s interpretation of it — permits the enactment of statutes and regulations that classify all records of an agency as non-public, Exemption (a) creates a major loophole that circumvents the intent of the Public Records Law.

The absurd logic underlying the privacy argument in this case is that the supposed violation of Karen McGowen’s privacy in releasing the documents is somehow worse than revealing the actions that caused her death.

In this case, in fact, the “identified individual,” Karen McGowen, is deceased. Murray herself stated in a 2017 determination that privacy interests, other than in medical information, are “extinguished at death.” We are not seeking medical information in this case.

Moreover, we have to wonder why Murray didn’t seek to review the materials we are requesting to determine whether redactions to protect privacy interests would be possible.

As I stated before,  it’s disappointing that to the extent the DPPC does get involved in crucial investigations of abuse and neglect in the state’s human services system, it has taken the position that the products of its work must be kept secret.

Despite what the DPPC apparently thinks, the public has a strong interest in knowing the outcomes of the Commission’s investigations. If the Commission finds, for instance, that the wheelchair lift that Ms. McGowen used was defective, it would be important that the public know this.

If the DPPC finds that the staff of a particular facility failed to provide proper care to an individual because they lacked proper training, the public should know that too. As things currently stand, these are the types of things the public may never find out.