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Mother briefly contacts missing autistic son in Texas

May 21, 2017 1 comment

A man with autism and mental illness, who left a group home unsupervised in Massachusetts early Wednesday morning, was believed to be in Brownsville, Texas, as of Saturday, his mother said.

But Kris Myerson said she believes her 30-year-old son may be experiencing psychotic symptoms and may be with people who might do him harm.

Myerson said her son texted her from a cell phone on Saturday and asked her for money. The phone text was traced by police to Brownsville. But when Myerson tried to get her son to describe where he was, he disappeared again, she said.

[Update: On Sunday afternoon, Myerson’s son texted her that he was on a bus to Los Angeles. She said he asked her to find a place for him to live when he arrived there. Myerson lives in Vermont.]

Myerson believes officials with the Department of Mental Health and with ServiceNet, the provider of his Hadley, MA-based group home, allowed her son to leave Massachusetts and travel to Texas. She considers those officials responsible for any harm that might come to her son whom she believes does not have the functional capacity to travel by himself.

Myerson said ServiceNet staff told police that her son left the group home early Wednesday morning wearing only shorts and a T-shirt.

It is not clear how Myerson’s son got to Texas from his group home in Massachusetts. Myerson believes he removed Social Security funds from his bank account with help from ServiceNet staff. She believes the staff also helped him purchase a cell phone.

Myerson thinks her son may have taken a bus to Texas. She said that the ServiceNet staff reported that a cab had arrived at her son’s group home at noon on Wednesday to take her son to an airport, but that he had actually left the house, unseen, earlier that morning.

Myerson said her son texted her on Saturday from what she surmised was a bus station in Brownsville.  She said he texted that “he wanted to go to California right away and seemed desperate to get out of Brownsville and very scared.” However, Myerson added that, “he could not even go to the ticket counter to buy a ticket and wanted ME to do that somehow from Massachusetts!!!”

DMH and Department of Developmental Services officials have told Myerson that they cannot interfere with the man’s travel or travel plans because he is an adult and had been found competent to make his own decisions.  But Myerson doesn’t believe that either department has evaluated his functional capacity. She noted that he was considered disabled enough to require services in a group home with 24-hour care following a year-long hospitalization at the Worcester Recovery Center.

Myerson said her son was recently hospitalized for an eating disorder and emaciation. He has an extremely low body mass index, considered by eating disorder specialists to be serious enough to need hospital-level care. She said he is not able to count change, does not know the months of the year, and “is not able to safely navigate out in the community.”  He often rides his bike on the sidewalk and in front of cars, she said.

Last month, the State Department denied a passport to Myerson’s son, based on an incomplete application. He had sought the passport in order to travel to Cancun, Mexico, to visit unknown persons there whom he had met while playing an online video game.

Man with autism and mental illness missing after having been allowed to leave group home with airline ticket to Texas

May 18, 2017 1 comment

A man with both autism and mental illness, who was denied a passport last month to travel to Mexico, is apparently missing after he was allowed to leave his group home Tuesday night. He had reportedly purchased an airline ticket to Texas.

Kris Myerson, the mother of the 30-year-old man, Kaleb Light-Gaudinier, has put up missing posters and contacted the police in Hadley where her son’s group home is located. The group home is run by ServiceNet, a Department of Mental Health provider.

Myerson, who has been at odds with DMH and the Department of Developmental Services over their supervision of her son, is worried that her son may be harmed because he lacks the capacity to function on his own. He receives services from both DMH and DDS.

Myerson said she considers both DMH and DDS and ServiceNet to be negligent in failing to keep her son from purchasing the airline ticket, apparently with his Social Security funds, and leaving the group home unsupervised. “They (DMH) have been reassuring us that they were prioritizing his safety,” Myerson said. “How is it safe to let a person on the autism spectrum and with severe mental illness get on a plane by himself to an unknown destination?”

Kaleb poster

A missing poster for Kaleb Light-Gaudinier, which has been posted by his mother

 

DMH and DDS officials have told Myerson that they cannot interfere with Light-Gaudinier’s travel plans because he is an adult and had been found competent to make his own decisions. It is not clear that either department has evaluated his functional capacity, although he is considered disabled enough to require services in a group home with 24-hour care.

The man had been on probation in connection with an incident a number of years ago in which he bit a police officer’s finger; but that probation period ended on Wednesday.  As of last month, he had been planning to travel to Cancun, Mexico, but the State Department denied him a passport for that trip.

Myerson had expressed strong concerns about her son’s planned trip to Mexico. He had said he planned to meet in Cancun with unknown persons he had met while playing an online video game.

Myerson said her son had also been talking about leaving his group home and traveling either to Texas, California, or Florida.  She said she now has no idea where her son is or whether he is safe.

Meanwhile, Myerson said she understands ServiceNet is continuing to hold her son’s room at his group home. She said she suspects the provider agency will charge him rent indefinitely out of his Social Security funds.

State Department denies passport for Mexico trip for developmentally disabled man

May 8, 2017 1 comment

The State Department has denied a passport to a developmentally disabled and mentally ill man who had been planning to travel alone to Cancun later this month to meet a person or persons whom he had met online while playing a video game.

Kris Myerson, the mother of the 30-year-old man, whose name we are withholding, said her family was informed in late April by the Department of Mental Health in an email that her son’s passport application had been denied.

The passport denial effectively prevents the man’s trip, which in his family’s opinion would have been unsafe for him to make alone due to his developmental disability and serious mental illness.

The DMH email, dated April 24, stated that the State Department had denied the man’s passport application “on the basis that additional information was required.”

The email added that it was reported to DMH that the man was no longer interested in pursuing the passport “as the requested information was going to be difficult to obtain.” The email did not indicate what the additional information was that the State Department was seeking.

Myerson’s son has both autism and schizophrenia and is a client of both DMH and the Department of Developmental Services. He currently resides in a group home operated by ServiceNet, a provider funded by DMH.

COFAR has reported that Myerson was afraid her son could have been harmed in Mexico. He weighs about 123 pounds and is 5′ 11” and is emaciated, she said. At the very least, she feared he would get lost there.

In the past eight months, Myerson said, her son has been hospitalized for overdosing on Advil and for self-starvation and dehydration while in ServiceNet’s care. He is also on probation for having bitten an officer’s finger a number of years ago while being taken in for a mental health evaluation; but that probation is scheduled to end next week, prior to his formerly planned trip to Mexico.

Myerson said she is relieved that her son will not be traveling to Mexico although she noted that her son’s planned trip was not cancelled due to any initiative of either DMH or DDS. She added that her son remains under the residential care of ServiceNet, which assisted him in applying for the passport.

Lately, Myerson said, the family has been assured by the DMH commissioner’s office that the department “will be prioritizing her son’s safety through the transition from probation and into the future.”

Myerson further stated that DMH officials recently told her and her family that the department was working with DDS to improve their assessment of clients with “co-morbid autism and serious mental illness.”  She said DMH is aware that such individuals are often not properly assessed by evaluators and staff who have not been trained in autism spectrum disorders.

Myerson applied in 2014 to be her son’s guardian, but was unsuccessful because her son reportedly contested her application and because DMH sided with her son and against her bid for guardianship.

She and her family continue to have serious concerns with DMH and DDS and their role in monitoring and properly assessing her son’s abilities and safety. A DDS official, in fact, told Myerson late last month that her son had been found competent to make his own decisions about travel.

In an April 21 email to Myerson’s daughter, a DDS official stated that it was his understanding that Myerson’s son “has been evaluated several times in recent years and found to be a person who is competent to make his own decisions.  As such,” the email stated, “(Myerson’s son) has the right to decide such things as where he will live, where he will travel, etc. DDS is not an agency that can restrict a competent person’s choices in these areas.”

Myerson’s daughter maintained, however, that DDS had not evaluated her brother’s functioning level. She said that as a former client of Vermont Developmental Disability Services, her brother had had a court-ordered guardianship assessment by a professional evaluator “and was judged to be in need of a guardian at that time, based on his very low scores.” That was before he was relocated to Massachusetts.

Myerson said that persons with autism often use “scripted dialogue” that they acquire from movies or even from therapists themselves. That ability to memorize that dialogue without really understanding it can make those individuals appear highly intelligent and insightful and can even fool mental health professionals who do not have deep knowledge of Asperger’s and other autism-related conditions.

The use of such scripted dialogue is one means by which some persons with autism attempt to hide their condition from others — a process sometimes referred to as “camouflaging.”

Myerson noted that her son “has many ‘savant’ skills” such as high-level vocabulary and “echoic memory with ability to absorb and spew back large tracts of dialogue gleaned from movies, youtube videos, etc.” Yet, those skills, she said, do not represent her son’s functioning level or overall cognitive abilities.

Myerson said her son has a “borderline” IQ and cannot perform basic math skills such as division and multiplication, cannot write a paragraph, and has no danger awareness – a common characteristic of people with autism. She said he has gone to sleep with lit candles on his bed and has ridden his bike in front of cars when trying to cross streets.

A DMH official did not return a call last week from COFAR, seeking more information on the efforts reportedly being made by the department and DDS to improve its assessment of clients with co-morbid autism and mental illness.

Mother concerned that her developmentally disabled son is being lured into a dangerous ‘vacation’ in Mexico

April 19, 2017 10 comments

Kris Myerson’s 30-year-old son is both autistic and schizophrenic and has periodic psychotic symptoms.

The man, whose name we are withholding due to privacy concerns, is incapable of taking care of himself, Myerson says. While he has very high verbal skills, he can’t recite the months of the year in order, for instance, or find his way to their car in a mall parking lot.

Myerson said her son is certainly not capable of going on a trip by himself to a different town much less a foreign country. Yet, she said, her son’s Northampton-based residential provider, ServiceNet, is allowing — and may even be encouraging  — him to accept  what appears to be a suspicious offer from one or more persons she does not know to fly to Mexico and meet them for a “vacation” next month.

Myerson’s son apparently hooked up with this person or people while playing Xbox online.

Myerson said one of those people reportedly told her son that he or she will pay for him to stay for a month in a hotel in Cancun once he meets them at the airport there. Also, Myerson’s son told her the person promised to provide him with a “girlfriend” during his stay.

According to Myerson, staff at ServiceNet recently helped her son apply for an expedited passport to enable him to take the trip to Mexico, which is scheduled for May 17. The group home personnel also reportedly offered to give her son a house cell phone for his use on the trip.

There may be no legal way for Myerson to stop her son from going to Mexico since he does not have a guardian and is over the age of 18.

Yet Myerson’s son qualifies for services from both the Department of Mental Health, which funds his ServiceNet group home, and from the Department of Developmental Services. She says that neither state agency appears to be willing or able to stop the trip.

In an April 14 email, Julie Schwager, DMH western Massachusetts area director, stated to Myerson’s daughter that DMH could not apply for an emergency guardianship of Myerson’s son because clinicians in the department have not determined that the man lacks the legal capacity to make his own decisions.

But Myerson believes her son does lack that capacity and is afraid her son could be harmed in Mexico. He weighs about 123 pounds and is 5′ 11” and is emaciated, she said. At the very least, she fears he will get lost there.

In the past eight months, Myerson said, her son has been hospitalized for overdosing on Advil and for self-starvation and dehydration while in ServiceNet’s care.

Myerson applied in 2014 to be her son’s guardian, but was unsuccessful because her son reportedly contested her application and because DMH sided with her son and against her bid for guardianship.

DMH has in the past sought a state-appointed guardian for Myerson’s son — a move that Myerson supported. But the agency backed off that effort and the guardianship never took place for reasons that were never explained to Myerson. She thinks it is possible that her son contested that effort as well. He apparently doesn’t realize that he is in need of a guardian.

Lately, Myerson has been unable even to get any information from DMH or DDS about the status of her son’s planned trip.

In an April 11 email to Myerson,  Schwager said that the agency’s authorization to talk to her about her son had been revoked. Without specifically mentioning the Mexico trip, Schwager added that, “Although it may be of little comfort, what I can say is that DMH works very closely with its providers in situations that we are concerned about to mitigate any potential risk.”

Myerson said she doesn’t understand why DMH is now saying its authorization to keep her informed about her son has been revoked. She maintains that her son never signed such an authorization in the first place, and yet DMH officials routinely communicated with her up to now about her son.

Myerson said her son recently asked that she become his representative payee for his Social Security disability income. For that reason, she said, she told Schwager that she needs to know what financial arrangements the group home may have made or is contemplating for her son’s trip.

In an April 10 email to Schwager, Myerson asked whether the money for the trip would be coming out of the group home’s funds or whether it would come from her son’s Social Security income.  However, that was the email to which Schwager said her agency’s authorization to respond had been revoked. As a result, Myerson has received no answer to that question.

Myerson said her son has about $1,000 in cash in his bank account and is expecting an $8,000 retroactive Social Security check.

I placed calls to Schwager yesterday and to the office of Daniel Lunden, DDS Central West regional director. The calls weren’t returned. I did talk to Daniela Trammel, DMH director of communications, who said the agency could not comment on the case.

A poor track record of care

Although ServiceNet personnel may consider themselves to be supportive of her son’s wishes, Myerson maintains that the agency is abetting him in potentially self-destructive behaviors. She contends the agency has a track record of making decisions like that concerning her son.

Myerson said that a couple of years ago, her son was initially placed in a ServiceNet group home in Greenfield where he was not given needed behavioral medications. He had a compulsion to injure himself, including burning his arms and other parts of his body with lighter fluid, and often went missing from the residence. She said ServiceNet failed to seek treatment for her son’s burns and allowed him to go for long periods without showering or changing his clothes.

A major police episode resulted after her son apparently purchased a knife at a Walmart in New Hampshire in May of 2015, using a credit card that a staff member at ServiceNet had given him. Myerson, who was with her son at the Walmart at the time, was unaware he had purchased the knife in the sporting goods section of the store until she was informed of it by a cashier. She said she was afraid to confront her son about it, but instead reported the matter to ServiceNet and to DMH.  But she said DMH refused to take the knife away from her son.

A week later, she said, she got a call at 1 in the morning that her son had been arrested for stabbing someone.  He was charged with attempted murder even though the person he stabbed was not severely injured and had actually attacked her son first. Her son was found innocent by a jury.

Myerson said her son had also had a prior criminal charge for biting a police officer’s finger during choke hold. He pled guilty and was placed on probation as a misdemeanor. He was sent to his current ServiceNet group home after having spent a year in the Worcester Recovery Center, a DMH hospital in which he badly decompensated. His probation reportedly ends next month, allowing him to leave the country at that time.

At the very least, we believe DMH clinicians should revisit their assessment of Myerson’s son’s mental and legal capacity to make his own decisions and consider filing for an emergency guardianship. We see no sound basis for this man’s decision to take this trip to Mexico and are troubled by the state’s apparent lack of concern about the situation.

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Why we won’t be at the bill signing at Fenway Park

October 22, 2014 1 comment

Tomorrow, Governor Patrick will be at Fenway Park for the ceremonial signing of three pieces of legislation that are intended to make major changes in the care and services for the developmentally disabled in Massachusetts.

Many advocates will be there, but many if not most of those in attendance will be corporate providers to the Department of Developmental Services, who played key lobbying roles in the drafting of each piece of legislation last spring.  As a result, as we have pointed out, each of these new laws (because Patrick signed them for real in August) is flawed in a major way.

There really is no reason to celebrate unless and until changes are made in the laws, so we won’t be at the event tomorrow.  In a nutshell, here are the problems with the laws:

1.  National Background Check law: The law authorizes national criminal background checks for persons hired to work in an unsupervised capacity with persons with developmental disabilities.  It will ultimately require that both current and prospective caregivers in the DDS system submit their fingerprints to a federal database maintained by the FBI.  Those requirements are long overdue, but they will be further delayed under the new law.

The fingerprint requirements will not be phased in under the law for all current employees in the system until January 2019, and will not take effect for new employees until January 2016. Another provision in the new law that raises questions appears to allow employees to be hired before the results of their background checks are obtained.

COFAR and the VOR, a national advocacy group for the developmentally disabled, sent a joint message to lawmakers this week that states: “Much harm can be done to vulnerable people due to the delayed implementation and the ambiguous language that we hope was not the intent of the Legislature.”

When COFAR contacted the Legislature’s Judiciary Committee last summer to ask why the committee had approved the delays and the ambiguous provision in the new law’s requirements, a staff member referred us to Johnston Associates, a Beacon Hill lobbying firm.  A member of the firm said providers and some other advocates had pushed for the delays.  No one could or would give us an answer as to why language was inserted that appears to allow the hiring of employees before their background checks are done.

2. The ‘Real Lives’ law: This legislation had been pushed for years on Beacon Hill by the providers.  The stated intent of the measure is to introduce “person-centered planning” into the DDS care system by allowing each DDS client to “direct the decision-making process” and manage their own “individual budgets” for care.

In the wake of criticism earlier this year from COFAR, legislators removed a provision from the bill, which would have named the Association of Developmental Disabilities Providers and the Arc of Massachusetts to a board that would advise DDS in developing the person-centered planning system.  Another provision that was thankfully removed would have established a “contingency fund” to compensate providers that lose funding when clients move out of their residential facilities.

But the new law still raises a number of concerns, including providing what appears to be only a limited role for guardians and family members in the person-centered planning process.  The law also introduces a central role in the process for vaguely defined “financial management services” and other privately run entities.

In a joint statement this week, the VOR and COFAR called on legislators to “ensure that vulnerable individuals with intellectual and developmental disabilities have the support of legal guardians, when appointed, rather than financial managers or independent facilitators” in undertaking person-centered planning.

The joint statement also urged legislators to add a provision to the law ensuring that persons seeking DDS services would have an explicit choice among a range of care options and settings, including state-operated facilities and group homes, provider-operated homes, shared living arrangements, and home-based care.  State-operated care is often not presented as an option to people seeking DDS residential services.  Those persons are instead presented only with the option of corporate provider-operated residential care.

3. The DDS eligibility expansion law: This legislation is intended to fill a major gap in DDS care in Massachusetts by extending eligibility for services to people with autism and two other specified disabilities known as Prader-Willi Syndrome and Smith-Magenis Syndrome.

Until the enactment of this law,  DDS had restricted eligibility for DDS services to people with “intellectual disabilities,” as measured by a score of approximately 70 or below on an IQ test. That left out many people with developmental disabilities, including autism, even though those conditions may severely restrict an individual’s ability to function successfully in society.  If those people score higher than 70 on an IQ test, they are routinely denied services.

However, in specifying three developmental disabilities that make individuals eligible for DDS services, the new law necessarily leaves out other conditions that often result in many of the same types of functional limitations, such as Williams Syndromespina bifida, and cerebral palsy.  The new law was the product of closed-door negotiations among legislators, administration officials, and selected advocacy organizations.

In addition to changing that eligibility standard, the new law establishes a permanent new autism commission and authorizes the establishment of tax-free, individual savings accounts to pay for a variety of DDS and other services.  The commission will consist of 35 members, including legislators, administration officials, the Arc of Massachusetts, and advocates from autism advocacy organizations.   There are no seats on the commission for any advocates of state-run care for the developmentally disabled.

The VOR and COFAR urged legislators this week to make changes in the law “to better identify and serve eligible individuals in need of services and supports.”

In sum, while these new laws have many well-intentioned supporters, major changes are needed in each piece of legislation to enable it to fulfill its purpose and prevent it from doing more harm than good.  It is not yet time for everyone to pat themselves on the back as will no doubt be happening tomorrow at Fenway Park.

New DDS eligibility law will leave many out in the cold

August 19, 2014 2 comments

Like at least two other bills signed into law this month, a new law that will make adults with autism and certain other conditions eligible for services from the Department of Developmental Services was the subject of closed-door negotiations between key legislators, selected advocates, corporate providers, and the department during the past legislative session.

And like the new “Real Lives” and national background check laws, the resulting omnibus DDS eligibility law, while well-intentioned, raises a number of uncertainties and questions.

The problematic definition of “developmental disability”

The new law specifies that in addition to people with intellectual disabilities, people with autism and conditions known as Prader-Willi Syndrome  and Smith-Magenis Syndrome will be eligible for DDS services.  Until now, state law has restricted eligibility for DDS services to people with “intellectual disabilities,” as measured by a score of approximately 70 or below on an IQ test.

The existing eligibility standard has left out many people with developmental disabilities, including autism, even though those conditions may severely restrict an individual’s ability to function successfully in society.  If those people score higher than 70 on an IQ test, they are routinely denied services.

In addition to changing that standard, the new law establishes a permanent new autism commission and authorizes the establishment of tax-free, individual savings accounts to pay for a variety of DDS and other services.

We have written before about the lack of services available to people with autism, Prader-Willi Syndrome, and other developmental disabilities.   It’s unclear, however, how many additional people will be helped by the new law and how many will be left out, in part because of the way the law was drafted, and in part because  it is unclear how many people with developmental disabilities currently go without services in Massachusetts.  The administration does not maintain a publicly disclosed waiting list for services.

We are glad to see that the Legislature has recognized that having an intellectual disability is not necessary to establish that an individual has severe functional limitations and needs DDS services.   The Disability Law Center (the DLC), a federally funded legal advocacy organization in Massachusetts, maintains that Massachusetts is the only state in the nation that has had such a narrow standard for eligibility for services.

But in specifying three additional conditions that make individuals eligible for DDS services, the new law necessarily leaves out other conditions that can and often do result in many of the same types of functional limitations, such as Williams Syndrome, spina bifida, and cerebral palsy.  We raised concerns about that aspect of the legislation earlier this year, noting that the selection of the specific conditions listed in the legislation was not subject to a public hearing before the Children, Families and Persons with Disabilities Committee, but was the result of closed-door negotiations.

A post currently on the The Massachusetts Association of Developmental Disabilities Providers (ADDP) website  homepage states that the ADDP’s affiliated organization, the Arc of Massachusetts, played a key role in those final negotiations over the DDS eligibility law and the two other new laws as well — the national background check and Real Lives laws.

COFAR and the DLC supported a previous definition of developmental disability in the DDS eligibility legislation, which did not specify a limited number of conditions, such as autism or Prader-Willi Syndrome.  The previous definition stated only that a developmental disability involves “substantial functional limitations” in three or more “major life activities,” which include such things as self-care, “receptive and expressive language,” learning, mobility, the capacity for independent living, and economic self-sufficiency.

We have noted that specifying certain conditions as eligible for state services and leaving out others may violate both the federal Rehabilitation Act and the Massachusetts Constitution, both of which prohibit discrimination solely on the basis of disability.  Withholding support for this restricted definition, in addition to COFAR, is the DLC.   As one advocate noted, the addition of three specified conditions for DDS eligibility to the existing requirement of intellectual disability “does very little to move us out of the bottom tier of all states” in the narrowness of the state’s eligibility criteria for services.

The lack of a state-care option

Another potential problem with the new law has to do with the makeup of the permanent autism commission.  The commission specified in the law will consist of 35 members, including legislators, administration officials, the Arc of Massachusetts, and advocates from autism advocacy organizations.   There are no seats on the commission for any advocates of state-run care for the developmentally disabled.

We think this is an unfortunate oversight in the makeup of the commission because we believe that state-run group homes and other facilities will be needed to accommodate the influx of new people who will become eligible for care under the new law.  As we have pointed out, the administration has been underfunding and even dismantling state-run care options for people with intellectual disabilities, and designating provider-run settings as their only option in most cases.

With potentially thousands of people added to the DDS eligibility lists as a result of the new law, a large percentage of that population will still not be able to get residential care or services due to a lack of DDS resources for community-based care.  If DDS continues to close state-operated group homes as it has been doing, this is only going to continue to make the situation worse.

State-run residential care is provided in Massachusetts by staff with better pay and training than is usually available in provider-run facilities.  As a result, we think an advocate of state-run facilities on the autism commission would introduce a needed point of view in the commission’s deliberations.

We did support the addition to the autism commission of a member with clinical knowledge of Smith-Magenis Syndrome.  Amendments to the legislation, which added that member to the commission and added Smith-Magenis Syndrome (SMS) to the conditions listed in the law, were filed on behalf of the Duzan family, whose daughter, Sara, has SMS. The amendments were adopted.

As we have reported, Sara Duzan has been subjected for many years to poor conditions and treatment in provider-run residential facilities, according to her family.  Part of the problem in her care has been that few providers are knowledgeable about SMS, which is often characterized by behavioral outbursts.  As a result of that lack of knowledge, Sara has often been subjected in residential facilities to the inappropriate use of restraints.  In addition, members of the Duzan family themselves have often been inappropriately and unfairly blamed by providers, probate court judges, and even clinicians and state administrators, in our view, for causing Sara’s outbursts.

Other issues

Another area of uncertainty in the new DDS eligibility law concerns its authorization of so-called ABLE accounts, which allow families of developmentally disabled people to establish tax-free savings accounts for expenses including education, housing, and supports and services.  It is unclear what relationship these accounts might have to “individual budgets” established under the newly signed Real Lives law.  We have expressed concern that those individual budgets do not appear to fall under the control of guardians of disabled clients.

Like the Real Lives law, which provides for the involvement of private financial managers in administering clients’ individual budgets, the new DDS eligibility law provides for the authorization of private entities to manage individual ABLE accounts.

As is the case with the national background check and Real Lives laws, we hope that the Legislature addresses the problems we have identified in the DDS eligibility law in its upcoming session.

New DDS background check law has delayed requirements

August 14, 2014 Leave a comment

A new national criminal background check law in Massachusetts  may well have a major, positive impact on services and care for people with developmental disabilities in the state.

But under the law, the background check requirement is delayed for many, if not most, current employees in the Department of Developmental Services system for more than four years, until January 2019.  The requirement is delayed for a year and a half for prospective employees in the system.

The long-awaited law, which was signed by Governor Patrick last week, authorizes national criminal background checks for persons hired to work in an unsupervised capacity with persons with developmental disabilities.  The law will ultimately require that both current and prospective caregivers in the system submit their fingerprints to a federal database maintained by the FBI.  The law applies to DDS employees, employees of corporate service providers to the department, and caregivers over the age of 15 of persons living at home.

Up to now, persons hired to care for clients in the DDS system have had to submit only to an in-state criminal background check, which identifies only criminal arrests and convictions in Massachusetts, and does not identify any convictions a job applicant might have from another state.  A national background check system will fill in that potential gap in the applicant’s history.

The new law’s fingerprint requirements, however, will be phased in through January 2019 for current employees, and will not take effect for new employees until January 2016.  Another provision in the new law that raises questions appears to allow employees to be hired before the results of their background checks are obtained.  That provision states the following:

Department-licensed, funded or approved programs and providers of transportation services on behalf of any department-licensed, funded or approved program may hire individuals without first obtaining the results of a state and national fingerprint-based criminal history check (my emphasis).

It’s not entirely clear to us what the intent of this provision is or what its impact might be.  It appears to allow people to be hired before they are cleared through the FBI database. The provision does not specify a time frame for obtaining the background check results after an individual is hired.

Does this provision mean that even after January 2019, someone could be hired by DDS or a provider and could work for weeks or possibly months with developmentally disabled people before their background results are obtained or before their backgrounds are even checked? Furthermore, does the provision allow for that leeway even for in-state background checks?

I contacted the staff of the Legislature’s Judiciary Committee earlier this week to ask about that provision and the provisions phasing in the background check requirements until 2016 and 2019.  It was apparently in the Judiciary Committee that these provisions were inserted. Interestingly, the Judiciary Committee staff person I talked to referred me to Philip Johnston Associates, a Beacon Hill lobbying firm, which was apparently involved in the final negotiations over the bill, apparently on behalf of DDS corporate providers.

On Tuesday, I spoke to a member of the Johnston Associates firm, who said she was unsure as well about the intent of the provision that appears to allow the hiring of individuals prior to checking their backgrounds, and that she would get back to me.  I have not yet heard back from her.  I also placed two calls on Monday and Tuesday to the state Department of Criminal Justice Information Services, which is in charge of administering the law.  I have yet to get a return call from that department.

The Johnston Associates staff member said the providers and other advocates involved in negotiations over the background check legislation pushed for phasing in the fingerprint requirements due to concerns over the time needed to implement them.  A member of the Association of Developmental Disabilities Providers expressed a concern in a news article last week that the new fingerprint requirements could prove burdensome to smaller provider agencies.

It is not clear to us though that more than four years is really needed to phase in the national background check program for current employees in the DDS system, or that a year-and-a-half delay is needed before requiring new employees to be fingerprinted.  We’re skeptical that that much time is needed, partly because we’ve witnessed a lack of urgency on the part of both the Legislature and the administration for the past several years in just getting this law passed.  It seems possible that that lack of urgency is being carried over into implementing the law’s requirements.

National background check legislation had been proposed each year for up to a decade by then Representative Martin Walsh, now mayor of Boston, before it was finally enacted this year.  Each year, the legislation would get stuck in either the Judiciary or House Ways and Means Committees, or both, and then would die at the end of the session.  The administration did little during that time to lobby for passage of the measure.  As a result, Massachusetts has been only one of a handful of states without a national background check program for people with developmental disabilities.

Meanwhile, the federal government has stood ready to assist the state with grant money under the Affordable Care Act to help implement the new background check law; but Massachusetts has declined to apply for that federal money, which has available since 2010. The state has even been slow to implement national background checks for school teachers and children’s day care providers.

While we’re glad to see that the DDS national background check bill is finally law, we hope the administration now shows a true commitment and sense of urgency in getting it to work.