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Illinois transparency laws could be a model for programs providing care to disabled in Massachusetts

January 2, 2019 5 comments

When it comes to the public’s right to know, Massachusetts state government has not been in the forefront in recent years, and issues concerning the developmentally disabled appear to be no exception.

Not only are investigative reports on abuse and neglect of the developmentally disabled largely kept secret in this state, but those reports are primarily done by the same agency that provides and manages services for the disabled. In those situations, there appears to be little incentive to let the public in on what the investigations have revealed.

As the new two-year legislative session begins in Massachusetts, COFAR will push for legislation that would make information about the care in the Department of Developmental Services system more available to the public. One place to start appears to be the adoption of online information about performance of DDS provider agencies and abuse and neglect in that system.

Such information, which exists in Illinois, could help families and guardians in making the difficult decision on placement of their loved ones in DDS-funded facilities.

Illinois abuse data on providers could be a model for Massachusetts

Illinois has both a human services “provider scorecard,” which offers comparative information about group home provider performance, and an online database that allows comparisons of numbers of abuse allegations and abuse substantiations among individual providers in the state. One caveat about Illinois is that these information sources appear to be extremely difficult to locate on that state’s Department of Human Services website.

The Illinois database appears to be a response to a series of articles in 2016 by The Chicago Tribune, which had described a system of privatized group homes in that state in which “caregivers often failed to provide basic care while regulators cloaked harm and death with secrecy and silence.”  The relative lack of coverage of these issues by mainstream media outlets in Massachusetts, and the relative lack of interest as well in the Legislature, may explain why few if any of these sources of online information are available in this state.

The DDS in Massachusetts does provide online provider licensure reports. But these reports on individual providers tend to contain vague and generic findings and recommendations that make comparisons among providers difficult. The licensure reports, which are also difficult to find on the DDS website, don’t reveal or discuss findings of abuse or neglect within the residential or day program facilities.

At least some of that comparative information that is missing in Massachusetts can be found on the Illinois Human Services Department website.

Provider Scorecard

Among the comparative online information available about the Illinois human services system are licensure scores for providers in the state known as BALC scores. As the website notes, the BALC scores are divided into several categories:

A (BALC) score of 100% indicates the provider is in full or acceptable compliance;

93-99% is considered an acceptable standing;

80-92% results in a written “Notice of Violations” and requires an acceptable plan of corrections;

70-79% indicates the agency is minimally compliant and will be on probation for up to 90 days; and

69% and below results in the disallowance of new admissions.

While the DDS licensure system in Massachusetts provides ratings for providers on dozens of individual measures, the ratings are difficult to understand, and there is no way for the public to compare providers on overall performance as there is on the Illinois provider scorecard site.

Also potentially important on the Illinois provider scorecard are comparative ratings of the average health risk and average maladaptive behavior of the residents of provider residences. No such information is available in Massachusetts.

The Chicago Tribune stated that the Illinois provider scorecard includes group home inspection results and links to online copies of investigative findings involving abuse, neglect or financial exploitation. We were not able, however, to locate those links.

Disclosure of data would supplement an abuse registry

The types of online information available or reportedly available in Illinois would be something that would potentially supplement a proposed registry in Massachusetts of caregivers who have had abuse charges substantiated against them.

The proposed registry in Massachusetts came close to enactment last year, but ultimately was not approved. Even that registry, however, would itself not be transparent in that the names of the persons listed in it would not be made public under the legislation that was under consideration in the just-concluded 2017-2018 legislative session. So it is important that there be information about DDS-funded programs that individuals, families, and guardians can consult to judge the performance of providers for themselves.

The Illinois abuse data list needs to be viewed cautiously, but we think most people looking for residential placements would do that.

For instance, in the Illinois substantiated abuse database, the most important column in the data appears to be the number of substantiated abuse allegations per 100 people served for each provider.

That data can vary widely from year to year, even for the same provider. As the charts we developed from the data for two of the providers show, the Village Inn Cobden had a higher rate of substantiated abuse than the Royal Living Center in Fiscal 2017, but the Village Inn had zero substantiated abuse allegations in Fiscal 2015 and 2016. In both cases, the number of allegations of abuse rose substantially over the three-year period.

 

Illinois abuse allegations charts Royal and Village

Public disclosure needed of abuse investigation reports

According to the Chicago Tribune, Illinois Human Services Secretary James Dimas told Senate and House lawmakers that his department had launched reform measures to heighten enforcement of group homes statewide and increase public transparency of the system.

The Tribune stated that:

…one of the most sweeping reforms outlined by Dimas would provide limited public access to previously sealed investigative files. The department is working with the Illinois attorney general’s office to provide group home addresses and full enforcement histories to families and guardians.

“I’m committed to transparency,” said Dimas, who was appointed in May 2015 by Illinois Gov. Bruce Rauner.

We think similar transparency is needed for investigative reports done by the Massachusetts Disabled Persons Protection Commission (DPPC). As we have reported, the DPPC’s regulations seem to go well beyond the agency’s enabling statute in stating that “the records of the Commission shall not be considered ‘public records’…” (my emphasis).

The DPPC regulations exempt from disclosure all “investigative materials” compiled by the agency. 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…”

We maintain that the DPPC’s enabling statute does not state that DPPC records are not public or that all investigative materials are exempt. Additional legislation may be needed clarifying this.

Finally, we would argue that DDS itself should not be involved either in investigating abuse or neglect within its own system, or even in licensing provider-run facilities. Both of those ongoing practices lead to conflicts of interest for DDS and to reduced transparency.

That’s why we will support legislation in the new session along the lines of a bill proposed by Representative Angelo Scaccia,which would take the group home licensing function out of DDS and make it an independent function. That legislation could be combined or paired with legislation to take abuse and neglect investigative functions away from DDS and put them into the DPPC.

Ultimately, we want to see a system of care for persons with developmental disabilities in Massachusetts that is both transparent and free of serious conflicts of interest. We hope the media and the Legislature are truly interested in those goals as well.

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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.

DDS stonewalling on cost, care information

January 24, 2012 1 comment

(Part 2 of 2-part series on transparency issues in the Patrick administration)

The Patrick adminstation contends it is striving to be “transparent” in the way it conducts the public’s business, and touts its Open Checkbook website among other initiatives.

But when it comes to getting public information from individual agencies within the administration, the record of transparency doesn’t always live up to the billing.  We think our own recent experience with the Department of Developmental Services is a case in point.

We’ve been fighting with DDS for several years over public information requests, but the agency’s disinclination in recent months to provide requested information seems to have gotten worse. 

It now takes months to get even the most minimal public records in response to our requests.   And DDS recently cited the letter of the Public Records Law in claiming they have no obligation to answer any questions about records that they have provided to us.  Also, in two cases in the past year, DDS cited confidentiality requirements in refusing to release what we think, in at least one of the cases, are clearly public documents.

Meanwhile, even a state lawmaker has been unable to get information out of DDS on deaths in the agency’s system.  State Rep. Anne Gobi, a Democrat from Spencer, wrote to DDS Commissioner Elin Howe in mid-October, asking for information on the number of residents who had been transfered from the developmental centers to community-based group homes and how many of those residents had died after the transfers.  As of this month, Gobi’s staff said she had not received any response to her inquiry.

Here are some more details about our efforts to get records and information from both DDS and the Executive Office of Health and Human Services:

  • In October, COFAR submitted a request similar to Gobi’s to DDS for information and public records concerning the number of developmental center residents who have been transferred to group homes since 2008 and the number of those residents who have died.

In that request, COFAR also asked for the number of community-based group homes that have been built to house former developmental center residents.  In early November, a DDS attorney responded that the agency was in the process of searching for the requested records.  There has been no further word since then.  We wrote to DDS on January 17, seeking an update on the status of our request, but have received no response to it.

  • In October, the DDS general counsel denied a request COFAR had first made in July for records detailing the costs of medical, nursing, clinical, and therapeutic services for individuals in a group home program operated by the May Institute, Inc.

COFAR initially filed the request for the records concerning the May Institute with both DDS and EOHHS.  In August, an EOHHS official responded that that agency was in the process of searching for the records.  Then, in September, a DDS attorney stated that DDS was searching for the same documents.

There has been no further word from EOHHS since August regarding the records.  In October, however, the DDS general counsel appeared to reverse the Department’s September position by stating that documents detailing funding for medical or clinical services for individuals would be part of their individual client records and therefore exempt from disclosure under the Public Records Law.

COFAR appealed the denial to the Supervisor of Public Records in October,  suggesting that DDS redact any names or any other information that might identify individual clients.  In the October appeal, COFAR maintained  that it was seeking only to find out the total cost to taxpayers of care for community-based clients such as those in the May Institute program.  Should DDS refuse to provide that information, “the public will have no way of knowing basic details about the provision and funding of these kinds of public services,” COFAR’s appeal added.

To date, the Public Records supervisor has not ruled on COFAR’s appeal.

DDS similarly denied a request in July from COFAR for information about the death of a man in a group home earlier that month, four days after he had been transferred there from the Templeton Center.   In that case, the Public Records Supervisor upheld DDS’s denial, accepting the Department’s argument that the information was private.

  • In July, COFAR asked DDS for detailed budgetary information regarding the Monson, Templeton, and Glavin developmental centers, which have been targeted by the administration for closure.  In response, DDS in August provided only a single line item amount for each facility, representing the total spending for that facility.  There was no budgetary breakdown of the line item for any of the facilities. 

 After COFAR appealed to the Public Records Supervisor, DDS, in late October, provided an “aggregated” spreadsheet containing numerous line items for all three developmental centers.  However, this time there was no separate breakdown for each facility.   Moreover, the total aggregated spending amounts for each of three fiscal years in the October response did not correspond with the totals provided in the August response.

As a result, COFAR sent an email to DDS asking why there was such a big difference, in particular, between the $176.3 million in total spending listed in the October spreadsheet for the three facilites  in FY 2009, and the $57.8 million listed in the August response for the same three facilities.

In a letter sent to COFAR in response, a DDS assistant general counsel wrote that the agency “is not required to answer questions…” under the Public Records Law.  So much for letting us, and the public, in on the inner workings of the state’s finances.

Earlier this month, an attorney with the Public Records Division, sent us a nice email, apologizing for the delay in responding to our October appeal regarding the May Institute documents, and saying:

I know that you are working very hard to help those in the Commonwealth who are the most in need, and that receiving records from custodian’s, like DDS, is a crucial part of assisting those individuals. 

Now, if only DDS wouldn’t balk at simple requests for information, and showed a dedication to following through on the administration’s claims of transparency.

Open Checkbook could be more open

January 19, 2012 1 comment

(Part 1 of a 2-part series on transparency issues in state government)

Despite its promises of greatly increasing government transparency, the Patrick administration’s new  Open Checkbook website  seems to me to fall a little short of the hype.

Open Checkbook was launched in December with lots of claims made about how it was going to give the average Internet user a powerful new lens into the inner workings of public finances.  The state budget office in conjunction with the Comptroller and Treasurer jointly instituted the website in response to legislation that sought to upgrade the state’s  relatively low ranking  in a state-by-state transparency survey by MassPIRG.

Open Checkbook is divided into two major sections, State Vendor Spending and Payroll & Pension Spending.  I found the vendor spending section to be  disappointing in one major respect.  It displays a lot of about where the money to vendors comes from, which is very good, but no information on where the money goes, i.e., how the vendors spend it.  (I haven’t yet tried out the Payroll & Pension Spending section.)

I used the vendor portion of Open Checkbook to look up one specific company, the May Institute, Inc., for Fiscal Year 2010.  This is the same nonprofit provider for which COFAR has unsuccessfully sought cost information lately from the Department of Developmental Services. 

I clicked on one particular category of funding for that vendor and got a long list of dates followed by  payment amounts.    By clicking on July 14, 2009, for instance, I was able to find out that DDS paid the May Institute $367,000 on that date for residential and day services.  It doesn’t appear to be possible to find out much more detail about that payment. 

What is good is that I was able to do a refined search, based on the residential and day services account, and find that a total of $26.9 million was paid to the May Institute under this account by DDS in FY 2010.

The bad news, as noted, is there is no way to track where the money goes after it gets to the vendor.   For instance, there there appeared to be no way to view administrative expenses for the May Institute or to find data on the compensation of executives of the agency.   It would seem that a checkbook should tell you about both incoming and outgoing funds.

Also, the site doesn’t display contracts, as some similar state sites do; and the data on Open Checkbook doesn’t go back before Fiscal Year 2010.  An official with the state budget office said displaying actual contracts is “on our list” for improving the site, but that hasn’t been decided yet. 

It’s also worth noting that much of the information available on Open Checkbook is available as well on the state’s longstanding Uniform Financial Report website for vendors.  In fact on the UFR website, you can find total payments to vendors broken down by government agency as well as spreadsheets that do show where the money is going, including amounts paid to executives of the vendor agencies.  (That salary information may be incomplete, in several cases, as we have reported.  But at least some of it is available.) 

The UFR site, for instance, shows that a total of $30.29 million was paid by DDS to the May Institute in FY 2010 as part of a total of $104.4 million in revenue to the vendor.  Admittedly, the information on the UFR site isn’t nearly as up to date as the Open Checkbook site.  But you can find a lot of information on the UFR site that isn’t available on Open Checkbook, such as the fact that the May Institute had $101.6 million in expenses in FY 2010, including $396,716 in compensation to its CEO and $56 million on direct care salaries.  Also the UFR information goes back to FY 2002.

What the UFR site doesn’t appear to show, which Open Checkbook does, is a breakdown of funding going to vendors per budgetary account, such as the Residential and Day Services account.

One other problem I had with Open Checkbook has to do with its presentation of a large amount of abbreviated or otherwise highly techical information.  For instance, the the funding listed for the May Institute was broken down into five categories on the site, including Grants to Nonpublic Entities, Legal Support Services, Medicaid, Purchased Human and Social Services for Clients/Non Medical, and a fifth and largest category dollarwise, titled “PurchH&Ss For Clit.Med/HC Rel (MM3).”    Spending under this category was listed as $23,047.235.83.  What exactly does “Clit.Med/HC Rel (MM3)” stand for?

I was able to hover my cursor over the acronym, and up came the following definition, which didn’t clear up the confusion very well.  The definition was:

Payments pursuant to contracts with organizations to purchase social services or programs with medical or healthcare related components on behalf of specifically identified clients or a specific target group.  Includes services rendered by an individual with payment to a corporate entity.  Federal funds are reported as sub-recipient payments.

The “MM3” part of the acroym is an object code classification for the payments.  The Open Checkbook site FAQ page states that individual object codes are defined in the “Expenditure Classification Handbook” maintained by the Comptroller’s Office.  But unfortunately, the link on Open Checkbook FAQ page  to the Comptroller’s Handbook didn’t work.

As administration officials have said, Open Checkbook is a work in progress.