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DDS license staff didn’t appear to notice problems mounting for resident at group home

July 15, 2019 2 comments

Timothy Cheeks is a 41-year-old man with Down syndrome who lives in East Longmeadow in a group home managed by the Center for Human Development (CHD), a corporate provider to the Department of Developmental Services.

Since 2017, Tim’s foster mother and co-guardian, Mary Phaneuf, has dealt with a string of problems with Tim’s care at the residence including:

  • A lack of proper medical care for Tim, including no documented visits to a primary care physician or dentist for seven years;
  • No documented visits to a cardiologist for six years despite Tim’s having been born with a congenital heart defect;
  • A failure to treat Tim for two years for back pain and a degenerative back problem, and to fill a prescription for pain medication for him;
  • A failure to ensure that Tim was receiving Social Security benefits for at least two years;
  • The unexplained removal of Tim from his day program run by the Work Opportunity Center (WOC) in Agawam without informing Mary of that fact; and
  • The diversion of food stamp benefits for Tim and at least one other resident of a CHD group home

Despite the seriousness of those issues, an online June 2017 DDS licensure inspection report for CHD on the department’s website does not mention those or similar problems in the agency’s group homes. The licensure report recommended deferring a new two-year license for CHD, but for generally worded reasons such as “medication treatments plans must address all required elements,” and “individuals’ funds and expenditures must be fully tracked.”

There was no indication on the DDS provider licensure report website whether a recommended follow-up review of the provider occurred or what the result was.

COFAR has reached out to DDS and CHD for comment. In an email sent this past Tuesday (July 9) to DDS Commissioner Jane Ryder, I asked whether DDS’s licensure staff takes abuse complaints and investigations into account in drafting licensure reports concerning providers.

In a separate email the same day to CHD President and CEO James Goodwin, I asked whether Goodwin believes his agency has sufficient policies and practices in place to prevent the types of problems Mary Phaneuf is alleging or whether such policies and practices are needed. I also asked whether CHD has policies both to ensure communication with family members and guardians who raise concerns about care, and to ensure that action will be taken to address those concerns.

To date, I have not heard back either from Commissioner Ryder or from Goodwin.

Mary Phaneuf and Tim Cheeks1

Mary Phaneuf and Tim Cheeks

Based on email correspondence between Mary Phaneuf and the former CHD manager of Tim’s group home, it appears that his East Longmeadow residence was inspected in 2017 as part of a two-year, DDS licensure process.

In June, DDS issued a resolution letter in response to a complaint filed by Mary with the Disabled Persons Protection Commission (DPPC). The complaint alleged that Tim had been neglected medically and that his SSI had improperly been allowed to lapse.

The DDS resolution letter also concerned a separate complaint filed by an anonymous reporter that the then house manager had misappropriated food stamp benefits for Tim and another resident.

The DDS resolution letter asked CHD to provide an accounting of Tim’s health care and that of the other resident for the past four years as well as an accounting for $2,000 in food stamp benefits that were allegedly taken from Tim and the other resident.

The DPPC had referred Mary’s complaint to DDS and apparently referred the complaint about the food stamps to the Hampden County District Attorney.

The DDS resolution letter did not dispute any of the problems Mary raised, but said an investigator had concluded that none of the problems constituted a risk of serious harm to Tim. Mary disagrees with that assessment, and has filed an appeal of the resolution letter.

Mary said she wants the public to know about the ongoing issues with her son’s care, and about her frustration in getting DDS and the provider to react to them and provide her with answers to her questions. She would like to see her information investigated by the state Attorney General’s Office, which COFAR has previously reached out to in an effort to persuade the AG to focus on care in the DDS private provider system.

Family had implicitly trusted the system

Mary said that prior to 2017, when she discovered by accident that Tim had been removed without her knowledge from his day program by the then manager of his group home, she had implicitly trusted the system. She thought, for instance, that the group home staff was regularly taking him to doctors’ appointments, particularly given that such visits were part of his care plan or Individual Support Plan (ISP).

When she found out, however, that he had been removed from his day program, she began to question everything the provider staff did or said. She was later to discover, for instance, that while Tim’s 2018 ISP stated that he had been to a dentist in September of that year and a doctor in October, CHD was unable to provide any documentation to back up those claimed visits. She now doubts that many, if any, of those visits actually occurred.

Adopted as a foster child

Tim first came to live with Mary and her family in 1981 as a foster child when he was three years old. At 22, when he became eligible for DDS services, he moved into a group home, and Mary became his co-guardian along with Tim’s birth mother. However, Tim’s birth mother has not been in contact with him, and Mary said she was told by DDS that the birth mother subsequently resigned as co-guardian.

Last year, one of Mary’s daughters, Jessica Szczepanek, became Tim’s health care proxy. Mary would like to make Jessica Tim’s co-guardian.

A 2017 DDS licensure report for CHD describes the provider as “a large, multifaceted organization,” and states that CHD operates throughout western Massachusetts as well as Connecticut.

Untreated back pain

Mary said Tim has complained of severe back pain since 2017; but after being assured by the then CHD house manager that he had been seen by a doctor who suggested it was just a posture problem, Mary discovered that he was sleeping on a “very old” futon mattress without a box spring to support it.

Additionally, she said, she discovered that he was sleeping several nights per week at another CHD residence in Springfield where he was being forced to sleep on a couch or the floor.  She said she requested that CHD provide him with a proper mattress and box spring, and either purchase a bed for him at the other residence, or stop forcing him to sleep there.

Shortly after that, she said, she received a statement in writing from the house manager that she had purchased new memory-foam mattresses for Tim for both the East Longmeadow and Springfield residences.

But Tim’s back problems continued. And after visiting his East Longmeadow residence in January, Jessica went into his bedroom to look at his mattress that the house manager said she bought for him.  There was not a memory foam mattress or box spring in his room, she said.  Instead, he still had a futon mattress, and the tag on the mattress was so old that the letters were not legible.

No documented doctor’s appointments for seven years

In a letter sent in January to DDS Area Director Dan Donnermeyer, Mary said that she and Jessica were told the previous fall that a doctor’s appointment had been scheduled for Tim, but that the appointment kept getting rescheduled by the group home management. 

In an email to COFAR, Jessica stated that during an ISP meeting last October, the then house manager had told her a physical for Tim had been scheduled for the following month of November. But in November, the house manager said the appointment had been rescheduled by the doctor’s office to late December.

Then, the day before the scheduled December doctor’s visit, the house manager told Jessica there had been “a miscommunication,” and Tim’s appointment had been moved to March 2019.

Jessica then called the doctor’s office directly.  The receptionist confirmed that Tim did indeed have an appointment scheduled for March 2019, but that the appointment had only been made one day prior to her call on December 21, and that it was a new-patient visit because Tim had never been seen at that office.

At that point,  Jessica wrote, she asked that CHD in December to provide her with documentation of Tim’s last visit to a primary care physician, as well as his last visit to his cardiologist, who he is supposed to be seeing annually for his congenital heart defect.

Mary provided us with CHD’s documentation of a visit to a Dr. Masih Farooqui in Springfield in January 2011, which she said was the most recent doctor’s visit that CHD was able to document. She said the most recent visit to a cardiologist for which CHD provided documentation was in 2012.

Despite that, Tim’s ISP documents, which are dated October 2018, contain a claim that his last physical was in September 2018. The 2018 ISP also lists the name of Dr. Farooqui as Tim’s primary care physician. Mary believes the visits claimed in the ISP never occurred.

The 2018 ISP also listed Dr. Farooqui as practicing at the 77 Boylston Street, Springfield, address of Hampden County Physician Associates. COFAR confirmed, however, that Hampden County Physician Associates no longer exists, and that Dr. Farooqui is now on the oncology staff of the Mercy Medical Center in Springfield.

COFAR was unable to reach Dr. Farooqui to confirm the year that he left that primary care practice.

Back pain prescription not filled

Mary said that on January 14 of this year, Jessica brought Tim to an Urgent Care clinic after CHD contacted her to report that Tim was continuing to experience severe back pain. She said she subsequently learned that group home staff had taken Tim to the same clinic a couple of weeks before at the end of December without her knowledge.

Mary said that after doing X-rays at the January Urgent Care visit, the doctor told Jessica that Tim had deterioration of muscle between vertebrae in his back, and that the pain he was experiencing could have been alleviated with physical therapy in 2017 when he first began complaining of back pain.

Mary added that during the previous Urgent Care visit in December, which was also for back pain, Tim was given medication and was prescribed a muscle relaxant. However, she said, CHD later informed her that the manager on duty at the group home never had the prescription filled. This resulted in continuing back pain and spasms for Tim.

Meanwhile, Jessica found out at the January Urgent Care appointment that Tim’s Mass Health coverage had been allowed to lapse for the past two years and that his Massachusetts state ID had also lapsed.

Removal from day program

In May 2017, Mary discovered that Tim had been removed from his day program at WOC without her knowledge or consent and in violation of his ISP.  She said she also learned that Tim had been left alone in his group home during the day for the previous two months.

In a lengthy letter of explanation to Mary, dated in June 11, 2017, the then group home manager acknowledged that she had removed Tim from the day program, and apologized for  “…my failure to talk with you and get your permission/input/opinion…”

The group home manager’s letter stated that after a sheltered workshop program at WOC was terminated (along with all remaining sheltered workshops in the state as of 2016), the manager found that there was little for Tim to do at WOC. She said she then organized a series of other activities for Tim and planned to enroll him in a “wrap-around” program approved at CHD to replace the WOC program.

Mary responded to the group home manager in an email, saying that she wasn’t taking issue with the reasons the manager had listed in her letter for removing Tim from his day program, but with the fact that she had done it without Mary’s knowledge or consent.

Mary also told DDS that she was later told by a CHD supervisor that the supervisor was unaware Tim had been removed from the WOC program, and that CHD did not have a replacement wrap-around day program as the former group home manager had claimed.

Mary added that, “no one from CHD can tell me where Tim was and who he was with for those two months” during which he was removed from the WOC day program.

Not receiving Social Security funds

In March of this year, Mary discovered that Tim had not received his Supplemental Social Security Income (SSI) since 2017. The federal SSI funds were supposed to be sent to his account managed by the group home. The funding had lapsed due to CHD’s failure to update the Social Security Administration with current information about Tim.

For two years, Mary said, the group home did not receive Tim’s monthly SSI payment of $670 from which Tim was supposed to receive a $100 monthly stipend for his needs. The missed funding over the two years totaled $2,400 that Tim needed for items such as underwear, socks, pants, shorts, sneakers, and a spare set of sheets.

DPPC referred to DDS, which found no risk of serious harm

In March, Mary filed a complaint with the DPPC alleging both neglect and financial abuse in Tim’s CHD group home. Her complaint noted that Tim had not received SSI benefits for at least two years and that he had not been seen by a doctor and had been medically neglected for at least seven years.

A separate complaint from an anonymous reporter stated that $2,000 in clients’ food stamp benefits had been taken from the two CHD group homes in East Longmeadow and Springfield.  Both complaints appear to have been referred by the DPPC to DDS.  The DDS resolution letter, dated June 7, stated that the group home manager had resigned from the group home.

The resolution letter also concluded that there was no indication of serious risk of harm to Tim.  However, the letter stated that CHD had been required to respond within 30 days concerning: 

  • Medical appointments that have not occurred as recommended in the provider’s residences.
  • Oversight that exists to ensure proper medical care in those residences.
  • An accounting of food stamps taken from group home residents.

Mary filed for reconsideration of the DDS letter, disputing the finding that Tim was not at risk. For years, she noted, he was denied medical attention to monitor a hole in his heart. He was further denied treatment from 2017 to 2019 for his back pain despite having been recently diagnosed with a degenerative back disk.

Mary also contended that Tim’s loss of two years of SSI income had caused him emotional distress due to a shortage of clothing, and that he is due back payment from CHD of at least $2,400.

Mary argued that CHD needs an individual to oversee and manage all Social Security representative payee duties, and needs to ensure renewal of all MassHealth and state IDs for all clients. She further called for a review of licensing of DDS group homes. “How could seven years of missed medical and dental appointments go unnoticed?” she asked. 

DDS licensure report doesn’t show any serious problems

DDS most recent online licensure report for CHD, which is dated  June 2017, did not note any issues with medical care in the CHD’s residential facilities except to state that medical plans for two residents “did not fully address all required elements.”

The licensure report stated that “the vast majority of individuals in the survey sample were supported to receive timely annual physical and dental examinations, attend appointments with specialists, and receive preventive screenings as recommended by their physicians.”

The licensure report stated that audits had been completed at six 24-hour CHD residential locations, but did not say how many residential locations the provider has in total.

In her June 2017 letter to Mary, the former house manager indicated that Tim’s home was going to be inspected as part of the DDS licensure process. Her letter stated:

…in  addition to my normal responsibilities I have been preparing for our licensing process (kind of like an audit) which is incredibly stressful.  I was chosen mid May…both of my houses…which prompted me to work 16-hour days for weeks and try to make sure everyone still was busy, happy and having a good life.

DDS has not provided answers to Mary’s questions

Mary said that to date, her questions to DDS about Tim’s care and how his group home was able to be relicensed have gone unanswered.  She said that during a May meeting to discuss Tim’s ISP, DDS and provider officials declined to discuss the many issues that she had raised.

“They only wanted to talk about correcting the ISP,” she said. “They all apologized (for the problems), but said ‘all we can do is move forward.'”

But while the officials said the former group home manager had resigned and a new manager was hired, Mary said that new manager quit in the beginning of May, telling her he was not receiving adequate support from the provider or DDS.

It isn’t surprising that DDS doesn’t want to talk about what has gone wrong in Tim’s group home for the past several years. It’s always much easier to say “let’s look forward.” But that is a prescription for continuing to repeat the mistakes of the past, and is, in fact, a tacit acknowledgement that the Department isn’t serious about addressing those problems.

We think the Attorney General’s Office needs to investigate this case and others like it as part of an overall investigation of the DDS group home system. After we met with staff of the AG in May, those officials expressed interest in undertaking such an investigation.

The Legislature’s Children, Families, and Persons with Disabilities Committee, has also done little or nothing that we know of to date to address or examine these issues. We have not heard of any results from two informational hearings that the Children and Families Committee held last year on abuse and neglect in the DDS system.

Massachusetts is a leader on many public policy fronts, but when it comes to care of the developmentally disabled, this state has a lot of catching up to do.

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Federal deinstitutionalization bill would lower human services care standards

May 31, 2019 5 comments

Unfortunately, the entire Massachusetts congressional delegation has signed onto a newly filed bill in Washington, which, as currently written, would encourage further unchecked privatization of human services, diminished oversight, and reduced standards of care across the country.

In Massachusetts, the bill, known as the federal Disability Integration Act of 2019 (HR.555 and S.117), would threaten the Wrentham Developmental and Hogan Regional centers, the state’s only two remaining residential facilities for the developmentally disabled that meet federal Intermediate Care Facility (ICF) standards.

Moreover, we think the bill does not comply with the law under the 1999 U.S. Supreme Court decision in Olmstead v. L.C., which recognized the value and legitimacy of institutional or congregate care for those who want and need it.

HR.555 (and the Senate version, S.117) calls explicitly for the the “transition of individuals with all types of disabilities at all ages out of institutions and into the most integrated setting…” (emphasis added).  The legislation specifies that the federal government would provide funding for technical assistance to states “to prevent or eliminate institutionalization” of persons with developmental disabilities.

This language does not comport with Olmstead, which held that that the Americans with Disabilities Act (ADA) does not condone or require removing individuals from institutional settings when they are unable to benefit from a community-based setting. In addition, the ADA does not require the imposition of community-based treatment on patients who do not desire it.

At the very least, the language in this bill should be changed to respect the choice of individuals, families, and guardians, either to apply to get into, or to remain in congregate-level care facilities.

So far, we have made our concerns known to the office of Senator Elizabeth Warren, and have requested that Warren reconsider her co-sponsorship of the bill. A staff member said the office will look into our concerns and will convey them to the office of Senate Minority Leader Charles Schumer, the lead sponsor of the bill.

We plan to contact the office of Senator Edward Markey and other members of the Massachusetts delegation as well.

Failure to acknowledge problems with deinstitutionalization

HR.555 perpetuates the myth of institutions as providing “segregated” care. It fails to acknowledge the relentless pursuit of deinstitutionalization in recent decades, which has caused “human harm, including death and financial and emotional hardship.”

What the bill particularly fails to take into account are the major upgrades in care and standards in congregate-care facilities since the 1970s, largely as a result of federal lawsuits brought in Massachusetts and other states.

The irony is that while those lawsuits also led to the introduction and growth of privatized, community-based care throughout the country, poor oversight and low pay and training of staff in the privatized group-home system has recreated many of the warehouse-like characteristics of large institutions prior to the 1980s.

The bill falsely purports to encourage choice

HR.555 states that its purpose is “to clarify that every individual who is eligible for long-term (human) services and supports has a federally protected right to be meaningfully integrated into that individual’s community…” in order to receive those services and supports.

But the bill states that a group home or other facility can only be considered community-based if it has four or fewer unrelated residents. That is an unworkable and actually choice-limiting proposition that is almost as radical as the position of the National Council on Disability that an institution is a facility with four or more people who did not choose to live together.

So, while the bill purports to be in favor of choice, the only choice it recognizes as valid is a community-based setting; and that means a residential setting with four or fewer residents.

But the Supreme Court held in Olmstead that congregate care is appropriate for some persons with developmental disabilities. In Massachusetts, we have repeatedly heard from families and guardians who are satisfied with the high level of care delivered in the Wrentham and Hogan centers.

The people remaining at Wrentham and Hogan are more profoundly disabled and have more serious medical issues on average than in other DDS settings. These people need the intensive care that is regulated by ICF-level standards. HR.555 does not recognize the distinctions or the different levels of care needed by different individuals.

In fact, the real purpose of the bill, in our view, is to eliminate the choice of ICF-level care, which is based on strict federal standards for staffing, in particular.

The political impetus to close all remaining congregate care settings comes, as it has for years, from state-funded, corporate human services providers, who have a conflict of interest because they stand to gain additional state contracts as state-run facilities are closed and their functions are privatized.

Massachusetts, as do most states, allows the providers to operate under a waiver of the ICF regulations, which permits lower standards of care for community-based services. Even so, the cost of that care is oustripping the ability of states to pay for it.

The cost is not identified

HR.555 would require states to offer community-based services immediately to all persons needing such services, and those jurisdictions would not be allowed to impose cost caps or use waiting lists. The bill, however, does not identify what the cost of such a requirement would be or where the funding would come from.

The VOR, which advocates nationally for persons with developmental disabilities, calls the bill “clearly unaffordable.” Simply encouraging, funding, or requiring the transfers of more people out of institutions into community-based care will only exacerbate problems in the latter system.

To the extent that the bill recognizes the cost of care, it attempts wrongly to place the blame on institutions. It refers to “billions of dollars in unnecessary spending related to perpetuating dependency and unnecessary confinement.”

This statement, however, does not recognize the high cost of executive salaries and of mismanagement in the community-based system. In Massachusetts, the cost of institutional care is less than 10% of the cost of privatized, community-based care.

The bill, however, does appear at least to recognize that there are costs in providing community-based care because the bill would require states and providers to review their funding sources and analyze “how those funding sources could be organized into a fair, coherent system that affords individuals reasonable and timely access to community-based long-term services and supports.”

Such a review sounds reasonable, and we think it should be done before legislation is enacted that would encourage further deinstitutionalization. As noted, the deinstitutionalization required by this bill would place a significant financial strain on the community-based care system for which no additional funding has been identified.

We would suggest that people contact the members of the Massachusetts congressional delegation, whose contact information can be found at this site: https://lwvma.org/your-government/federal/.

We hope all of the members of the delegation will reconsider their support of HR.555 and S.117.

State auditor finds direct-care workers were bypassed in funding boost for providers

May 17, 2019 1 comment

The State Auditor has reported that a major boost in state funding in recent years resulted in surplus revenues for human services providers in Massachusetts, but that those additional revenues have led to only minimal increases in wages for direct-care workers.

Meanwhile, the leadership of the Massachusetts House of Representatives quashed a state budget amendment last month that would have raised direct-care wages to $20 an hour. That amendment had been co-sponsored by more than a majority of the House membership.

In a May 8 report, State Auditor Suzanne Bump’s office reported that so called Chapter 257 funding, which was at least partly intended to boost direct-care wages, “likely did not have any material effect on improving the financial wellbeing of these direct-care workers.”

The state auditor examined financial records of 89 human services providers, most of them under contract with the Department of Developmental Services. Among those surveyed providers, Chapter 257 funding helped boost their surplus of revenues over expenses on average from roughly $120,000 in Fiscal Year 2010 to $404,000 in Fiscal 2017, the audit stated. That is an increase of 237%, or an increase of almost 30% a year, in surplus revenues.

However, the audit stated that during that time, the average hourly rates paid direct-care workers increased by only 24% in total, or about 3.1% per year, on average. The audit pointed out that the yearly increase in average direct-care wages only exceeded inflation by about 1% per year.

The audit found that the average hourly direct-care wage was $11.92 in Fiscal 2010, and rose to $14.76 as of Fiscal 2017.

Under Chapter 257, which was enacted in 2008, state funding rates for social-service programs are set by the Executive Office of Health and Human Services (EOHHS). Before Chapter 257 rates were implemented, state agencies typically negotiated multiyear contracts with human-service providers and established individual reimbursement rates for each contract.

As of Fiscal 2017, DDS contracts accounted for $1.3 billion, or more than 55% of total Chapter 257 funding in Massachusetts, the audit stated.

House leadership kills wage increase for direct-care workers

Last month, the House leadership killed an amendment to the proposed Fiscal 2020 state budget that would have required that additional state funding to the providers be used to boost direct-care wages to $20 an hour. The amendment had been sought by SEIU Local 509, a state employee union that also represents human service provider workers.

An SEIU official said that even the Baker administration had supported the amendment, but that the providers opposed it.

No similar amendment has been filed in the Senate, which is currently debating the Fiscal 2020 budget. The SEIU official said the union will instead push for passage of a bill in the current legislative session (H.1658) that would accomplish the same thing as the House amendment. That bill is currently in the Labor and Workforce Development Committee, which has yet to take action on it.

Although the providers reportedly opposed the SEIU amendment, the Arc of Massachusetts, a key provider lobbying organization, is supporting a related bill, HD.1130, which would set a minimum rate of $17 per hour for wages paid to entry-level direct-care workers.

But unlike H.1658, which would require that the funding for the direct-care wage increases come from Chapter 257 funds, HD.1130 does not specify a source of funding for raising direct-care workers’ wages. It appears the providers don’t want the money for higher direct-care wages to come from their Chapter 257 funding, even if that funding is providing many of them with surplus revenues.

In 2017, the SEIU issued a report asserting that Chapter 257 had enabled the providers to earn $51 million in surplus revenues. The state auditor’s report this month stopped short, however, of asserting, as the SEIU did in 2017, that the providers could and should have used surplus revenues garnered from Chapter 257 rates to boost direct-care wages.

Both the state auditor’s report and the SEIU’s 2017 report provide confirmation of a report by COFAR in 2012 that direct-care workers in the DDS contracted system had seen their wages stagnate and even decline in recent years while the executives running the corporate agencies employing those workers were getting double-digit increases in their compensation.

The SEIU’s 2017 report stated that during the previous six years, the providers it surveyed paid out a total of $2.4 million in CEO raises. The SEIU report concluded that:

This all suggests that the amount of state funding is not at issue in the failure to pay a living wage to direct care staff, but rather, that the root of the problem is the manner in which the providers have chosen to spend their increased revenues absent specific conditions attached to the funding. (my emphasis)

The Massachusetts Legislature needs to demonstrate that it is on the side of the human services caregivers who perform some of the most difficult and thankless work possible, and not strictly on the side of the corporate executives who wield virtually all of the political influence on Beacon Hill.

While we strongly support proposed reforms to the human services system such as establishing a registry of caregivers with substantiated abuse charges against them, a registry alone will not solve the abuse problem. The problem of abuse is very much the fault of poor management and a lack of training and supervision from top management. And it is a direct result of the underpayment of those caregivers.

The direct-care workers are on the front lines when it comes to making the system work. Yet, those people are easy to forget in the political power struggles at the State House; and to the extent they are remembered, it is often as the sole object of blame for the failures of the system as a whole.

The Legislature can begin to right those wrongs by supporting H.1658 and ensuring a living wage for direct-care workers.

 

New academic paper defends the Pacheco Law, which has been vilified for 25 years for the crime of protecting taxpayers

January 23, 2019 2 comments

The Pacheco Law in Massachusetts is a textbook example of how a good piece of public policy can be trumped and misrepresented for political and ideological reasons.

Now, a new paper published on a website called In the Public Interest has attempted to set the record straight about the 25-year-old law, which has unjustly been used as a political punching bag for almost that length of time.

Full disclosure: I’m one of the three authors of the paper, which is titled, “The Pacheco Law: 25 Years of Taxpayer Protection.” The Pacheco Law, which is also known as The Taxpayer Protection Act, requires a detailed cost analysis prior to privatizing government services.

As a one-time newspaper reporter who covered the legislative debates over the law, and now as a research and communications director for COFAR, I have long been interested in the far-reaching efforts in this state to privatize human services, in particular. In the past two decades, during which I worked for the state Inspector General’s Office and then became an adjunct instructor in public policy at Framingham State and other universities, I’ve become a fan of the Pacheco Law.

lakeville hospital

Lakeville State Hospital — one of many state-run human services facilities that were closed in Massachusetts. A loophole in the Pacheco Law allowed the closings without invoking the law’s cost analysis requirement.

The lead author of the paper is Elliott Sclar, an economist who is professor emeritus of urban planning at Columbia University. Also authoring the paper was Michael Snidal, a doctoral student in urban planning at the university.

Dr. Sclar and I were among a group of people who were asked last year by state Senator Marc Pacheco of Taunton to write the paper as part of a larger project to examine both the history and political future of the 1993 Taxpayer Protection Act, of which Pacheco, of course, was the chief author and sponsor.

In the Public Interest describes itself as “a comprehensive research and policy center on privatization and responsible contracting.”  As the Center notes, our paper presents evidence that the Pacheco Law has saved the taxpayers hundreds of millions of dollars in the past quarter century.

Thus far, Senator Pacheco’s project has received some preliminary funding from a public employee union in New York, the Amalgamated Transit Union. I should note that the funding the project has received pales in comparison with the huge amounts of money that have been spent to have organizations such as the Pioneer Institute vilify the Pacheco Law.

As I’ve noted on this blogsite in the past, the opponents of the Pacheco Law, which include Massachusetts Governor Charlie Baker, The Boston Globe’s editorial page, the Pioneer Institute, and many others in neo-liberal political circles, claim the law has almost completely stifled innovative efforts to privatize public services in Massachusetts.

But as we pointed out in the paper, what the Pacheco Law has really done has been to ensure in several cases that a comprehensive cost-benefit analysis was undertaken before state-run services in Massachusetts could be privatized. It’s not innovative if taxpayers end up paying more for a service, and it’s not innovative if the quality of the service is worsened rather than improved.

Privatization, of course, has been the focus of a long-running debate between those who claim that government is inherently inept and wasteful, and those who claim that the sole purpose of privatization is to enrich corporate interests that want to make easy money from government contracts. In Massachusetts, arguments over the Pacheco Law have usually been cast in those mutually exclusive terms.

Left out of the discussion, however, has been a third view, which is that privatization can work if it is subject to adequate competition, analysis, and oversight, and that policy measures such as the Pacheco Law provide the necessary analysis.  That’s the view we took in our paper.

Privatization proponents have benefited from a loophole in the Pacheco Law 

The basic requirement of the Pacheco Law is that before services can be outsourced, the state auditor must affirm that the move will actually save money, and that the resulting privatized services will be equal or better than the services provided by state employees.

Opponents of the Pacheco Law never mention the fact that 75 percent of the privatization applications made to the state auditor since the law’s inception have been approved. In addition, a major push for privatization in the field of human services has taken place in Massachusetts without triggering the Pacheco Law at all.

As we noted in the paper,  successive administrations from Governor William Weld onwards have exploited what is essentially a loophole in the Pacheco Law with respect to human services.  The loophole stems from language in the law implying that services can be privatized and subject to the law’s cost analysis requirement only if the services are currently performed by state employees.

That language has allowed successive administrations to assert that they are not outsourcing if they simply close a state-run residential center for the developmentally disabled, for example, and subsequently send either the former residents or others waiting for services to a privatized residential facility.

The Pioneer Institute erroneously contended the Pacheco Law lost money for the MBTA

As our paper points out, the Pacheco Law was invoked when the MBTA tried to outsource the operation and maintenance of Boston area bus lines in 1997. The state auditor concluded, after a review required by the law, that the agency had failed to prove that privatization would save money, and in fact, that outsourcing the bus service would actually cost the state $73 million more than keeping the function in-house.

We have calculated that without the Pacheco Law, the MBTA would have gone ahead and outsourced the bus service, resulting in compounded losses exceeding $200 million over the ensuing years. Those calculations were based on my own finding in 2015 that the cost of contracted commuter rail services at the MBTA actually rose faster since 2000 than did in-house bus service costs.

Our paper’s combined findings stand in sharp contrast to a claim made in an influential report by the Pioneer Institute in 2015 that the failure to privatize the bus service ultimately cost the MBTA $450 million.

In fact, the Pioneer study had inappropriately compared  bids proposed by the two prospective bus service vendors with actual costs incurred by the MBTA in 1997, and applied the same cost-escalation factor to the bids and in-house costs between 2003 and 2013.

The Pacheco Law requires agencies like the MBTA to compare “apples to apples” bids under which both numbers represent a projection, i.e. a contracted projection against a projection of in-house services delivered in a “cost efficient manner.”

Ultimately, as we pointed out in our paper, both our cost calculations and the Pioneer’s report were based on back-of-the-envelope calculations that, even if done correctly, fell far short of the comprehensive cost analysis required by the Pacheco Law.

Recent history of privatization in Massachusetts 

Our paper attempts to place the Pacheco Law in the context of the history of privatization in Massachusetts from the 1980s onward. The law was a response to a worldwide privatization trend beginning in the 1980s. And one of  the most ardent proponents of the trend was William Weld, who became governor of Massachusetts in 1991 “with an unabashed conviction that less direct government service provision guaranteed better outcomes.”

But while outsourcing in itself wasn’t new when Weld took office, the difference now was that “neoliberal contracting or privatizing had become a matter of ideology, a belief that the private sector is always competent and the public sector inherently deficient.”

In Massachusetts and elsewhere, a major effort was begun to privatize governmental services and functions with little supporting analysis and few checks or balances.

Among those working under Weld to carry out the rush to privatize was Charlie Baker, at the time secretary of human services and later secretary of administration and finance. Baker came highly recommended to the administration by the Pioneer Institute.

Privatization proposals “flew in from near and far” – from local think tanks like the Pioneer Institute and from “antigovernment hard hitters” like the Heritage Foundation and the Cato Institute, the latter declaring Weld the best governor in America.

Weld’s subsequent closings of the state-run Paul A. Dever State School in Taunton and nearby Lakeville Hospital “hastily pushed families dependent on chronic care away from places they had called home for decades.” The equipment at Lakeville was given away to the private Parkwood Hospital in New Bedford at no cost.

As a Globe Spotlight series in 1993 showed, the Weld administration and its privatization arrangements “were deeply conflicted by special interest money, lobbyist motivated lunches, and massive corporate campaign donations.”

In this context, Pacheco, whose Senate district included Dever and Lakeville, first proposed his legislation while he was a member of the House in 1992. It didn’t pass then, but did pass the following year after Pacheco had been elected to the Senate.

As noted above, however, Weld and subsequent governors, Republican and Democratic, continued to shut facilities for the developmentally disabled and to expand the private system of corporate, provider-run group homes without invoking the Pacheco Law.

Costs misrepresented

Both the Romney and Patrick administrations claimed that privatized care for the developmentally disabled was cheaper per resident than state-run care by comparing the average cost per resident in privatized residences to a calculated cost of care in state-run developmental centers such as the now-closed Fernald Developmental Center.  This comparison was disingenuous; Fernald served a population with a much more profound level of intellectual disability and more severe medical needs than the population in the privatized community system.

Their cost comparison method also overstated the state costs per resident. The administrations simply divided the total Fernald budget by its population of residents to determine the cost of care, overlooking the portion of Fernald’s budget that went to programs that benefited community-based residents.

In bypassing the Pacheco Law, these administrations never seriously considered proposals to operate developmental centers more efficiently, something the law explicitly calls for.

Had the cost and quality analyses required by the Pacheco Law been used in the contracting of services for the developmentally disabled in Massachusetts since the 1990s, a better understanding of the costs involved in that process and higher quality care would have resulted.

The Pacheco Law would have:

1) ensured that all potential costs were fully analyzed prior to closing state-operated facilities, and

2) ensured the quality of care run by corporate providers be equal or better that state-run facilities.

Privatization can work if it is subject to competition, analysis and oversight 

Our paper concludes with the observation that governments may be able to maintain quality of service and reduce their bottom line if there exists a competitive private market that has a known quality and price. In those instances, it can often be shown that costs can be reduced by privatizing services.

However, unproven generalizations about the cost effectiveness of privatization must be subject to scrutiny.

In sum, as we noted, the Pacheco Law’s 25-year anniversary, which occurred last month, “provides a ripe occasion to start a national dialogue about how we restore vibrancy to a public sector that has been badly damaged by ideological attacks on government.”

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.

Connecticut has moved ahead of Massachusetts on direct-care worker wages

September 18, 2018 2 comments

It apparently took the threat of a major strike, but the Connecticut Legislature passed a bill and the Connecticut governor signed it earlier this year to raise the minimum wage of direct-care workers in that state’s Department of Developmental Services system to $14.75 an hour, starting January 1.

A similar effort fell short last year in Massachusetts when a budget amendment to raise direct-care wages to $15 was killed in a budget conference committee in the Massachusetts Legislature.

While Governor Charlie Baker signed separate legislation in June to raise the minimum wage across the board in Massachusetts to $15, that wage level won’t actually be reached until 2023. The minimum wage will rise to only $12 next year, whereas it will be close to $15 in Connecticut for human services workers as of January 1.

It seems that even though legislators and the administration of Governor Dannel Malloy in Connecticut are equally as tolerant of runaway privatization as they are here in Massachusetts, the Connecticut Legislature and governor have shown a greater recognition that increased privatization has resulted in low wages for direct care human service workers, and that low wages have had a negative impact on services.

In May, after the Connecticut Senate voted overwhelmingly in favor of setting the minimum direct-care wage at $14.75, Malloy made a statement that we have yet to hear Governor Baker make:

“For far too long,” Malloy said, “the people who provide care to our most vulnerable neighbors have been underpaid for their critical work.”

In fairness to Baker, Malloy made that statement only after 2,400 employees of nine corporate provider agencies in Connecticut voted in April to authorize a strike that was set to begin in early May. The workers in Connecticut are represented by the SEIU 1199 New England union.

Clearly hoping to avert that strike, the Malloy administration proposed raising the minimum wage for human services workers to $14.75 an hour and providing a five-percent raise for workers earning more than $14.75 an hour effective January 1.

The Malloy administration’s proposal, which was endorsed by the SEIU union and ultimately signed into law, applies to 19,000 union and non-union caregivers that staff some 170 group homes and other nonprofit agencies that receive Medicaid funding in Connecticut, according to The Connecticut Mirror.

As Connecticut Senate President Pro Tempore Martin Looney noted:

The work (those caregivers) do is among the most important in our state in terms of humanity.  If we are to consider ourselves a humane and caring society, at long last we should begin at least to recognize the value of that work.

In Massachusetts, SEIU Local 509 helped organize a five-day strike  for a living wage in July at CLASS, Inc., a DDS-funded day program provider based in Lawrence. The workers there were getting paid about $13 an hour and wanted a $1 increase. The company was offering an increase of only 40 cents.

The president of CLASS, meanwhile, was making about $187,500 a year, according to the state’s online UFR database.

In July, workers at CLASS, Inc. reached a settlement with management to raise the workers’ wages by 60 cents an hour. That would still leave the average worker there well below what direct-care workers will be earning in Connecticut.

The Massachusetts strike, moreover, didn’t have the impact on legislators and other policy makers here that the threat of the Connecticut strike apparently did in that state. Thus far, it isn’t apparent that there is any political will in Massachusetts to raise the minimum wage of direct-care workers to Connecticut’s level.

That is concerning because five years is a long time to wait for the minimum wage for direct-care workers to reach $15. Due to inflation alone, that $15 will be worth less to Massachusetts workers in 2023 than it would be if they were to receive it starting this January.

 

Has the Globe just shown a newfound, if inadvertent, support for the Pacheco Law?

August 20, 2018 Leave a comment

Although we are an advocacy organization that focuses on human services, we have at times waded into the ongoing controversy over the operation of the MBTA in Boston.

The reason for that has to do with a now decades-long debate over privatization of public services and the implications of the Pacheco Law in that regard.

On Sunday, The Boston Globe reiterated its support for the privatization of T functions with an editorial that defended the current contracted operation of the T’s problem-plagued commuter rail system.

As a supporter of privatization, the Globe has, in recent years, been at the forefront of the long-running criticism in political and journalistic arenas of the Pacheco Law. But in calling on Sunday for a cost-benefit analysis prior to any proposed move to bring the T’s commuter-rail system in house, it seems to us that the Globe is also endorsing, if inadvertently, the principles and intent of the law.

The Pacheco Law requires state agencies seeking to privatize existing operations to do a cost-benefit analysis that demonstrates that the cost of privatizing the service would be lower than continuing to do the service in-house, and that the quality of service would be equal or better if it were privatized.

The Pacheco Law, which was enacted in 1993, has been a lightning rod for political criticism and controversy over the years. Much of the state’s political establishment and prominent journalistic institutions have been harshly critical of it.

We have supported the law because we see it as providing a potentially important layer of oversight and analysis in the ongoing privatization of services for the developmentally disabled in Massachusetts.

In a 2011 editorial, the Globe called the Pacheco Law “an affront to common sense,” and charged that it was allowing public employee unions to place their “demands” above “the obligation to run government efficiently.”

But in its editorial on Sunday, the Globe actually put forth an argument that appears, without directly admitting to it, to endorse the precepts of the Pacheco Law. In criticizing calls by Democratic candidates for governor for in-house operation of commuter rail when the current contract with Keolis expires in 2022, the editorial states:

Whoever is in charge in 2022, though, here’s a suggestion: Since in-house management is an idea that refuses to die, [and I would add, so is privatization, for that matter!] the state should ask the T to submit a plan showing what it would entail. If nothing else, that would clarify for the public the costs and benefits, and bring some specifics to what is now little more than a vague applause line for Democrats. (my emphasis and insertion in brackets)

That is exactly what the Pacheco Law calls for when state agencies seek to privatize services. What the Globe is calling for is the same type of cost-benefit analysis, only in reverse — from privatized services to in-house. To me, it actually sounds like a good idea.

The Sunday editorial further states that while the state “can definitely do a better job with commuter rail after its current contract with Keolis expires in 2022…the goal of better service, not adherence to ideological precepts, should guide the next governor.” (my emphasis)

Agreed, and that is also the goal of the Pacheco Law, which is to ensure better service and lower cost rather than privatizing based on ideological precepts.

The editorial contends that:

…the T doesn’t have — and never has had — the in-house ability to operate the commuter lines itself, and dumping the commuter rail system directly into an already overburdened agency risks disruption. It could also raise thorny union issues, probably raising labor costs. And there’s no reason to expect running the commuter rail in-house would result in better service. (my emphasis)

Maybe not, but in-house operation of commuter rail might actually result in cost savings.

We reported in 2015 that the annual cost to the MBTA of contracting for commuter rail services had risen by 99.4 percent since 2000, compared with a 74.9 percent increase in the annual cost of the agency’s in-house bus operations, according to cost information we compiled from public online sources.

Finally, the Globe editorial suggests that rather than bringing management of commuter rail in house, the T should consider offering the next contractor “a longer-term deal, to better align the incentives of the contractor and the state and potentially bring in private-sector money for capital investments.”

I would note here that long-term contracts are not necessarily better deals for the state or consumers. It is difficult if not impossible to project financial risks over long periods of time. As a result, long-term contracts tend to have provisions that protect private contractors from those risks while transferring the risks to the public.

Also, private investments for capital improvements must be repaid by taxpayers and riders, and those deals can be very expensive to the public. Often there is little transparency in the terms and provisions of private investment arrangements in public infrastructure.

All of these are reasons why the Pacheco Law is necessary and important to the continued efficient and effective operation of government. The law provides for an open and detailed analysis and discussion of costs and benefits when public and private services and functions come together.