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COFAR renews request for DPPC report on woman’s death in wake of Boston Globe court ruling

Although the state’s Public Records Supervisor ruled in April that the state Disabled Persons Protection Commission (DPPC) can keep all investigative reports on the sudden death of a developmentally disabled woman secret, we believe a recent state Superior Court ruling has provided a basis for renewing our request for the records.

The decision by Superior Court Judge Douglas H. Wilkins in December 2017 upheld an appeal by The Boston Globe, which has been seeking mug shots and incident reports of police and other public officials who have been arrested on various criminal charges.

In our view, the Globe’s argument that the records it is seeking are public applies equally to the DPPC report and related records in the case of Karen McGowen, which COFAR has been seeking.

Ms. McGowen was killed in an apparent accident last November. She reportedly fell from a wheelchair lift while getting out of a van at her Pittsfield-based day program funded by the Department of Developmental Services.

The DPPC, which is charged with investigating or supervising investigations of abuse and neglect of disabled adults under the age of 60, confirmed it was investigating Karen McGowen’s death. On February 13, the DPPC denied COFAR’s request for the records in the case.

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

We are arguing in our renewed bid for the DPPC records that the DPPC’s enabling statute does not actually explicitly state that all of the Commission’s regulations are exempt from disclosure.

In her April 20 determination, Murray focused on the DPPC’s regulations, which, contrary to the enabling statute, do explicitly state that the Commission’s records are not public. The regulations would therefore appear to exempt all or most of the Commissions records from public disclosure.

But that apparent inconsistency between the DPPC’s enabling statute and regulations was not noted in Murray’s determination.

That appears to be the crux of the matter because a similar apparent inconsistency between a statute and regulations regarding the state’s CORI law is the basis of Judge Wilkins’ December decision in the Globe’s public records case. In his ruling, Wilkins upheld the Globe’s argument that the CORI law does not permit public officials to block the release of mug shots or police reports.

Wilkins also upheld the Globe’s argument that a regulation issued by the state agency that administers the CORI law is inconsistent with the law in that the regulation appears to justify withholding the records from disclosure.

“The regulation is invalid because ‘its provisions cannot in any appropriate way be interpreted in harmony with the legislative mandate,'” Wilkins’ decision stated.

State Attorney General Maura Healey and the City of Boston have appealed Wilkins’ ruling. Oral arguments in the appeal have not yet been scheduled, according to a reporter we talked to at the Globe.

With regard to the DPPC’s records, the Commission’s enabling statute states that: “The Commission shall promulgate regulations establishing procedures to exclude personally identifiable information regarding the subjects of investigations and to carry out the responsibilities of this chapter in such a way as to disclose as little personally identifiable information as possible.” (my emphasis)

However, the DPPC regulations seem to go well beyond that, stating that “the records of the Commission shall not be considered ‘public records’…”

The regulations go on to exempt from disclosure all “investigative materials” compiled by the DPPC. And the regulations state that the DPPC can determine that “the mere removal of identifying personal data would be insufficient to protect existing privacy interests, or that disclosure would not be in the public interest…”

Our argument is that the DPPC’s statute does not state that DPPC records are not public or that all investigative materials are exempt. And the statute doesn’t give the DPPC the discretion to determine that the agency can withhold all records because removing identifiable information would not protect privacy interests. The statute simply says the Commission should disclose as little identifiable information as possible.

As a result, it appears to us that the DPPC regulations are similarly invalid because their provisions cannot be interpreted in harmony with the DPPC’s legislative mandate.

In his decision in the Globe’s case, Judge Wilkins wrote that if any doubt remained about that type of inconsistency, the CORI statute “establishes a clear ‘presumption that the record sought is public’ and places a burden on the record’s custodian ‘to prove with specificity the exemption which applies’ to withheld documents.”

Similarly, we argue that the DPPC’s enabling statute establishes a clear presumption that the Commission’s records are public and that the Commission has the burden of proving with specificity the exemption that applies to withheld documents. In stating that the records of the Commission are not public, the regulations contradict the plain language of the statute.

So it is the burden of the DPPC to prove that any of the exemptions to the Public Records Law apply to the information we are seeking — particularly to completed reports. To the extent that personally identifiable information exists in those documents, the Commission can redact it.

Given that we think the DPPC is still likely to deny our renewed request, we hope that the Public Records Supervisor will then take Judge Wilkins’ decision into account in making a new determination in the matter. In doing so, the Public Records Supervisor should at least seek to review the materials we are requesting to determine the level of redactions that would be needed to comply with the DPPC’s enabling statute.

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

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

May 23, 2018 2 comments

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

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

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

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

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

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

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

DPPC HQ

DPPC headquarters in Braintree (Google Maps image)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DDS won’t give out information on reported death

August 2, 2011 1 comment

Late last month, we received a report that a healthy, 55-year-old man had been transferred from his home at the Templeton Developmental Center and subsequently died four days later at a community-based group home.

The death reportedly occurred around July 24.

As an organization that advocates on behalf of persons with intellectual disabilities and their families and guardians, COFAR has an interest in getting to the bottom of reports such as this.

Is the report, in fact, true?  If so, why would a healthy man die four days after being transferred from one Department of Developmental Services location to another?  The answers to these questions could help us better understand the state of care available to all DDS clients.

We posed those questions regarding this reported death in an email on July 27 to DDS Commissioner Elin Howe.  In response, we received a message on July 29 from DDS General Counsel Marianne Meacham, which provided no answers and stated that personal and medical information is exempt from disclosure under the state’s Public Records Law.  Meacham also cited a provision in DDS’s enabling statute, stating that records of admission and treatment to DDS facilities shall be kept private.

For reasons I’ll get into below, we intend to appeal this denial of information to the state’s Public Records Division.  But first, I’d note that DDS’s reaction to our query appears unfortunately to be part of a longstanding pattern on the part of the department of secrecy concerning deaths of persons in its care.

For years, our member organization, the Advocacy Network, has tried without success to obtain notification from DDS of the deaths of former residents of the Belchertown State School and other facilities in order to arrange to pay proper respects to those people.  In one case, the Network learned that the cremated ashes of a resident of a vendor-based group home in the Pioneer Valley had sat disregarded on a shelf in the provider’s business office for two years.   

In their Spring 2009 newsletter, the Advocacy Network stated that DDS cited confidentiality and privacy regulations as reasons for not providing notifications of the deaths of DDS residents even when obituaries had been published in newspapers.

Edward Orzechowski, editor of The Advocacy Network News, quotes Donald Vitkus, a former resident of the Belchertown State School as saying, “‘No one ever died at Belchertown. People just were never seen or talked about again.'”  Although that apparently was the case at this former state facility in the 1950s, one wonders if that situation still prevails in the DDS system.

To be fair, deaths at the Wrentham Developmental Center appears to be handled much differently.  COFAR Executive Director Colleen Lutkevich notes that when Wrentham residents die, residents’ guardians are notified and wakes and funerals are held, which are attended by residents, staff, families and friends. 

In refusing to provide any informaton about the reported death of the former Templeton Development Center resident, Meacham appears to have cited an exemption to the Public Records Law [M.G.L. Chapter 4 Section 7(26)] that concerns “medical files or information…(and)  any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.”  She also cited DDS’s enabling statute ( M.G.L. Chapter 123B, Section 17), which states that records of admission and treatment to DDS facilities shall be kept private.

We intend to appeal this denial of information because we were not asking for medical files or medical information or for records of admission or treatment.  Instead, we are seeking information about the circumstances under which a client in the DDS system died.  Secondly, case law, as we understand it, holds that personal privacy rights end when a person dies.

Not only do we and our member families have an interest in learning about deaths of persons in DDS care, the general public has a legitmate interest in knowing about this as well.   What if there was negligence or even foul play involved?  DDS has to start using common sense and stop hiding behind false confidentiality and privacy claims in these cases.

Update: We just received some cost records from DDS…but

February 21, 2011 1 comment

On Friday, I received a letter and some short spreadsheets from the Department of Developmental Services in response to our Public Records request for documents supporting the administration’s cost analysis in closing three developmental centers in Massachusetts

The administration’s cost analysis, which was submitted to the Legislature last summer, concluded that closing the Templeton, Monson, and Glavin developmental centers would save tens of millions of dollars in state funds. As readers of our posts know, we’ve long questioned that claim.

It took two and a half months to get a total of six pages from DDS on Friday, and it only happened after we filed an appeal for the documents with the State Supervisor of Records.  The problem now is that these six pages do not appear to be responsive even to our pared-down documents request in January.  We will probably have to file another Public Records request with DDS and we may continue our appeal with the state Public Records Division.

Still, the documents we’ve received so far do shed a little light on how the administration came up with its projected savings in closing the Templeton, Monson and Glavin Centers and transferring a projected 274 of their residents to community-based residences and to the Wrentham Developmental Center. As we suspected would be the case, the documents indicate that many important costs of community-based care were left out of the administration’s analysis. And, as we’ll explain below, at least part of the analysis is based on an inappropriate apples-to-oranges comparison of developmental center and community-based residents.

First, I’d note that the administration appears to have submitted two entirely separate analyses in the same report to the Legislature on the cost of closing the centers.  The first analysis primarily used DDS budget costs and came up with a $14.7 million annual savings in closing the centers; and the second analysis used what were described as “fully loaded costs,” meaning they included some additional fringe benefit and other costs that DDS factored in. That analysis came up with a $20.3 million annual savings in closing the centers.

The records I received on Friday indicate that the administration’s first analysis was based largely on what the records stated is a $150,000-per-person, yearly cost of operating a group home for eight former residents of the Fernald Developmental Center.  (This appears to be a group home in Bedford, although the DDS letter I received on Friday doesn’t identify it as such.)  The analysis multiplied the $150,000 cost of the group home by 97 Monson, Templeton, and Glavin residents projected to be transferred to new community-based residences, and came up with a total cost of care in new community-based residences of $14.5 million.

(We had specifically asked DDS for documents supporting that $150,000 cost. The only thing DDS provided us was a one-page budget sheet, which the DDS letter stated was a budget for the group home for Fiscal Years 2008 through 2011. It’s unclear from this budget sheet, though, how the $150,000 cost was calculated.)

As part of the same analysis, the administration also determined that it would cost $95,000 per resident to place a projected 76 former Monson and Templeton residents in existing community-based homes (total $7.2 million), and $135,000 per person to place 42 Glavin residents in existing community-based homes ($5.7 million). The administration also determined that it would cost $70,000 per resident to place a projected 59 residents at the Wrentham Center ($4.1 million). The total cost of closing the three developmental centers was therefore determined to be $31.6 million.

(Despite our request, the DDS provided no backup documents showing how those figures for placing Monson, Templeton, and Glavin residents in existing homes or in the Wrentham center were derived. Why was the Wrentham center cost only $70,000 per resident, for instance, if developmental centers are supposed to be so expensive?)

The analysis then used the Fiscal Year 2009 bugets of the Templeton, Monson, and Glavin centers to determine costs per person in each, and multiplied those figures by the number of residents projected to be transferred from each facility to determine a cost of keeping the three centers open ($46.3 million).

The analysis concluded that closing the developmental centers will therefore result in an annual savings of $14.7 million. 

Unlike the first analysis, the second analysis appeared to be based on the average cost of care in the community-based system as a whole. The administratation appears to have first calculated a fully loaded community residential cost in Massachusetts in FY 2009, which was listed as $603.2 million for vendor-operated homes and $163.8 million for state-operated homes.  It’s not clear where those numbers came from, but they appear to track line items in the FY 2009 state budget for community residential and state-operated group homes.  The numbers are a little higher than the budgetary line items possibly because they are fully loaded figures.

This cost analysis then added $19.2 million for day services and $16 million for transportation services to the other two amounts for vendor and state-operated residential care to derive a total community-based cost of care that could be compared with the cost of operating the Templeton, Glavin, and Monson centers.  (Again, it’s unclear where the day services figure came from, in particular, because the Day Program line item in the budget in FY 2009 was around $128 million.)

The DDS documents show that the administration then calculated yearly, per-person costs for residential care, day services, and transportation in the community system, which were then added together.  That sum was multiplied by the 215 residents projected by DDS to be transferred from Templeton, Monson, and Glavin to both new and existing homes in the community system. The total annual cost of community-based care for those residents was projected to be $30.3 million.

Next, the administration calculated a fully loaded cost of transferring a projected 59 residents from Templeton, Glavin, and Monson to the Wrentham Center, and came up with a figure for that of $13.9 million.  So the grand total of placing 274 Templeton, Glavin, and Monson residents in both the community system and Wrentham came to $44.3 million per year.

Finally, the administration used the Glavin, Templeton, and Monson budgets for FY 2009 to calculate a total, fully loaded cost of serving the same 274 residents, and came up with a figure of $64.6 million.  The administration concluded that there would therefore be a savings of $20.3 million in closing the developmental centers.

Here are some of the questions we have about both analyses:

First analysis:  The budget sheet for the group home for former Fernald residents lists certain staffing and other costs for the group home in Fiscal Years 2008 through 2011, but it doesn’t break those staffing costs down in any way.  As a result, it’s impossible to judge whether the costs listed for the group home are comparable to the developmental center costs cited by the administration.

For instance, does the $818,224 listed as employee compensation in the group home budget in FY 2009 include staffing for day programs outside the home?  Does it include the cost of transportation and medical care for the residents?  Does it include day habilitation costs, and service coordination costs?  We don’t think it does; yet, all of those costs are included in one way or another the budgets of the developmental centers.

It was also unclear how the numbers on the budget sheet relate to the claimed $150,000 cost of operating the group home. And does that $150,000 include housing subsidies and food stamp costs, which help pay for housing and meals in the community system?  Again, we don’t think those costs are included.

Also, we would question the validity of basing an analysis of the cost of care in new community-based homes on the cost of care of just one group home. Among other questions, are the particular Fernald residents in the Bedford home representative of all residents in the facilities slated for closure?

Second analysis:  How were the figures for community residential, state-operated residential, day, and transportation costs derived in the fully loaded cost methodology?

Do the Bedford group home costs factor in any way into this fully loaded cost analysis?

Also, is the methodology of this analysis based– as it appears to be– on a comparison of the average cost of care in the community with the average cost in the three developmental centers?  If so, this is the apples-to-oranges comparison we’ve been talking about all along. The developmental centers serve older, more medically involved, and more intellectually disabled persons than does the community system on average. As a result, transferring those people from the developmental centers to the community will not necessarily result in a savings.

As is the case with the first analysis, do the community-based costs in the fully loaded cost analysis include medical care, day habilitation, service coordination, housing subsidy, and food stamp costs? We don’t think those costs are accounted for here either.

In both analyses, is the relatively small number of people projected to be transferred to Wrentham realistic? Using the administration’s figures, if more people were transferred to Wrentham, the projected savings in closing the Templeton, Monson, and Glavin centers would drop.  

Finally, do either of these analyses include the cost of further renovations at Wrentham that would have to be done to accomodate the additional residents projected to be sent there? We don’t think they do.

The bottom line is that in our view, numerous questions surround the administration’s claimed savings in closing the Templeton, Monson, Glavin AND Fernald developmental centers (Fernald wasn’t even included in the cost analyses submitted to the Legislature). We therefore have a couple of questions for the members and staff of the House and Senate Ways and Means Committees and the Children, Families, and Disabled Persons Committee, which received the administration’s cost analyses last summer:

Has anyone on these committees actually reviewed these analyses, and, if so, do they have any of the same questions we do? Last fall, we wrote to the three committees, raising some preliminary concerns about the cost analyses. We’ve still not heard back from them.

We’re still waiting for the administration’s cost documents

February 15, 2011 3 comments

Almost two and a half months ago, we asked for public documents from the administration to support its claim that the state will save money in closing four developmental centers in Massachusetts for persons with intellectual disabilities.

We’re still waiting.

Our December 3 request was for specific documents backing up a cost analysis submitted by the administration to the state Legislature last summer.  The cost analysis claims that the closures of the four developmental centers — Fernald, Templeton, Glavin, and Monson — will save the state $40 million a year.

Lest you think our request was overly broad, we offered last month to narrow it to a request for documents primarily supporting a specific projection in the administration’s analysis that it would cost $150,000 per person to place residents in new community-based homes.  That figure compares with $172,900 per resident that the analysis contends is the average cost of operating three of the developmental centers targeted for closure.  The difference of $22,900 is part of the savings claimed by the administration in closing the centers.

So far, we’ve received no documents.  In fact, the last I heard from the administration on this matter was a December 21 letter from the general counsel of the Department of Developmental Services, stating that the agency would have to search for the records we were requesting and that the cost of the search was likely to exceed $100.  The letter stated that the general counsel would contact me as soon as she determined the precise cost of searching for and copying the documents.

It’s interesting that DDS would  have to search at all for documents used to back up a major cost analysis that was submitted to the Legislature only last summer.  One would think DDS officials would know where these records are.

One would also think that by now, the general counsel would have at least determined the actual cost of such a search.  After all, the state’s Public Records Law [M.G.L. Chap. 66, Section 10 (b)] states that custodians of public records must comply with public records requests within 10 days.  The regulations accompanying the law [950 CMR 32.05(2)] further state that requested public records should be provided “without unreasonable delay.”  Nearly two and a half months since we first submitted our Public Records request, we haven’t even been told what the cost of searching for those records might be.

On Feb. 4, not believing that DDS was in compliance with either the letter or spirit of the Public Records law or regulations, I contacted the state Supervisor of Records, who can ultimately refer these matters to the atorney general or a district attorney.  As of Feb. 11, a staff person in the Supervisor’s office told me that DDS had not responded to a fax she had sent to them, asking about our records request, and that she was going to send them a letter. 

We asked for these documents for a number of reasons.

First of all, we believe the administration’s methodology in comparing developmental and community-based costs is flawed.  The cost analysis appears to be based on a comparison of the average cost per resident of community-based care and the average cost of care in the Tempton, Monson, and Glavin centers.  The problem is that the residents of the developmental centers are older and  have higher levels of intellectual disability and greater medical needs than the average community-based resident.  The average age of residents in those three facilities is 57.5, according to the cost analysis itself.  In other words, the administration appears to be making an apples-to-oranges comparison.

Secondly, we believe that the $150,000 community-based cost figure projected in the administration’s analysis may not include at least some charges that have been shifted to the state’s Medicaid budget.  Day Habilitation services, for instance, which are a key element of the care of persons who have been transferred from the developmental centers to the community system, are paid from Medicaid.  Similar services, which are provided in the developmental centers, come from the DDS budget.  The administration appears to be comparing costs only within the DDS budget of developmental centers and community-based care.

We don’t feel as though we’re grasping at straws here in trying to demonstrate that the cost of community-based care is not necessarily less expensive than developmental-center care for comparable residents.  As we’ve previously reported, the State of Connecticut has projected that closing that state’s remaining developmental center would result in higher costs, not savings.

After we sent out a press release late last year expressing our concern about the apples-to-oranges comparison of costs, a spokesperson for the administration claimed to The Springfield Republican that the administration’s projections “have been accurate so far.”   If that’s the case, then the administration should be eager to provide the documents we’ve requested, which would show what those projections are based on.  The administration, however, seems to have shown a notable lack of eagerness to provide those documents.