Accountable Strategies blog

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Posts Tagged ‘Patrick administration’

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

Posted by David Kassel on February 17, 2011

(Cross-posted from the COFAR blog and Blue Mass Group

Almost two and a half months ago, we asked for public documents from the Patrick administration to support its claim that the state will save money in closing four developmental centers in Massachusetts for persons with intellectual disabilities.  Our request was made on behalf of the Massachusetts Coalition of Families and Advocates, Inc. (COFAR).

We’re still waiting for the documents.

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 attorney 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

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The outcome of our public records saga

Posted by David Kassel on November 12, 2009

[Cross-posted from Blue Mass Group.  Disclosure:  Written on behalf of The Fernald League for the Retarded, Inc.

The Massachusetts Public Records Division in the office of Secretary of the Commonwealth Bill Galvin has denied our appeal seeking records on the administration’s plans to renovate the Wrentham Developmental Center.

Let me explain why we think this denial is both a very poor decision by Galvin’s office and an indication that the Patrick administration’s efforts to close the Fernald Developmental Center may well be in disarray.

The Fernald Center is the nation’s oldest state-run facility for persons with mental retardation.  I’ve been helping the Fernald League, a family-supported, nonprofit organization, in its battle to prevent the  administration from closing the Center, sending most of its residents to Wrentham, at least temporarily, and ultimately privatizing its services.   The League contends that the administration has not taken a number of costs, such as the Wrentham renovations, into account in concluding the state will save money in closing Fernald.

In a letter to me dated November 3, Public Records Supervisor Alan Cote said the Division of Capital Asset Management (DCAM) can withhold the Wrentham records because they relate to a “policy decision” that has still not been finalized.

NOT BEEN FINALIZED?  I thought the Patrick administration had finalized its policy of closing Fernald and transferring most of its residents to the Wrentham facility.  That, in fact, was what Nick D’Alusio, the director at Wrentham, thought as well, when I called him on November 6.

D’Alusio told me that his understanding was that DCAM and the Department of Developmental Services were both on track to renovate two buildings at Wrentham and have them ready to accept as many as 60 Fernald residents by May.  But he acknowleged that the project still hasn’t gone out to bid.  The design is complete, he said.  But the bids were supposed to be solicited in September.  The cost of the renovations is reportedly $1.6 million.

As I noted in a previous post, I had filed a request with DCAM on July 9, seeking the feasibility study and a documented cost estimate for the Wrentham renovations.  Under the state’s public building construction bidding statutes and policies, those feasibility documents should be completed and approved before the design is done.

But after first writing to tell me I should make an appointment to come in and review the records, Peter Wilson, DCAM deputy general counsel, wrote to me on August 21, denying my request.  Wilson’s denial letter cited an exemption to the Public Records law relating to those ongoing policy deliberations.

The exemption, however, says that it does not apply to “resonably completed factual studies or reports.”  The same day I received Wilson’s denial letter, I also received a letter from DDS Commissioner Elin Howe, stating that bidding on the Wrentham project was scheduled for September, with a contract award scheduled for October.  If that was the case, any feasibility study on the project would have had to be completed by the time Wilson was denying my request.

The Public Records Divsion took more than two months to decide my appeal.  Yet, their attorney never talked to me about the case, never asked for Elin Howe’s letter, which I had offered to provide him, and never called D’Alusio or apparently anyone else to verify DCAM’s exemption claim.  The Public Records attorney also apparently never asked DCAM for a copy of the feasibility study for the renovations to decide for himself whether it was reasonably complete. 

In his letter to me on Tuesday, Public Records Supervisor Cote stated that Wilson had stated in an October 30 email to his office that there were “ongoing discussions…as to whether ‘the building [slated for renovations at Wrentham] can be used’ for the contemplated purpose.”

“That’s totally new to me,” D’Alusio said, when I read him the passage above from Cote’s letter.  “I have no information that there are still discussions over the use of the buildings.”

So, here we are.  It’s already November, with seven months to go until DDS’s announced June deadline of closing Fernald, and six months to go until its announced deadline for having Wrentham ready to receive some 60 Fernald residents.  A design for the renovations is complete; yet, DDS and DCAM have apparently not even decided that the buildings in question at Wrentham can even be used for “the contemplated purpose.”

Meanwhile, DDS is laying off staff at Fernald and letting conditions deteriorate there — a situation which is putting pressure on remaining family members and guardians of the residents to get them out quickly.  No wonder those folks aren’t getting much sleep at night these days.

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The saga of a public records request

Posted by David Kassel on October 21, 2009

[Note: Cross-posted from Blue Mass Group.  Disclosure:  Written on behalf of The Fernald League for the Retarded, Inc.]

More than three months ago, I requested documents from the state of Massachusetts on the projected cost of renovating the state-run Wrentham Developmental Center to accomodate residents of the Fernald Center, which is slated to close in June. My request was made on July 9. 

The Fernald Center is the nation’s oldest state-run facility for persons with mental retardation.  I’ve been helping the Fernald League, a family-supported, nonprofit organization, in its battle to prevent the Patrick administration from closing the Center and privatizing its services.   The League contends that the administration has not taken a number of costs, such as the Wrentham renovations, into account in concluding the state will save money in closing Fernald.

From what I understand, there are only two documents involved in my records request: a feasibility study and a documented cost estimate for the renovations.  The state Division of Capital Asset Management (DCAM) was reportedly scheduled to award a contract to undertake the renovations this month.

At first, it looked as though I was going to get the records I’d requested.  Although it was long past the required 10-day response period, Peter Wilson, Deputy General Counsel at DCAM, wrote me on July 21, saying I should make an appointment to come in to review the records.  I contacted Wilson’s assistant, who told me she was attempting to track the records down.

Weeks went by, and I checked in periodically. Then, on August 21, I received a one-paragraph letter from Wilson, this time denying my request.  In his letter, Wilson stated that the requested records were exempt from disclosure because they “relate to policy positions being developed” by the state.  Wilson’s letter added:

The purpose of this exemption is to allow government offices to deliberate and form policy by engaging in free and frank exchange of options and ideas, which would be inhibited by public scrutiny.  [emphasis added]

Does the Massachusetts Public Records Law really have an exemption that talks about promoting the “free and frank exchange of options and ideas” and preventing that from being “inhibited by public scrutiny?” 

I didn’t think so.  Here’s the exemption in question.  It states only that exempt documents include “inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency.”  The exemption says nothing about feasibility sudies or estimates of the cost of state construction or renovation projects.  It seemed to me that a  feasibility study and cost estimate for a specific construction project does not involve the development of policy.

Moreover, the law states that this exemption shall not apply to “reasonably completed factual studies or reports.”  In late August, I received a letter from Department of Developmental Services Commissioner Elin Howe, stating that bidding on the Wrentham project was scheduled for September, with a contract award scheduled for this month.  If that was the case, any feasibility study on the project would have had to be completed by the time Wilson was denying my request.

My appeal to the state Public Records Division has been pending since August 27.  This would seem to be an open-and-shut case.  Yet, it took me weeks to get through to the Public Records attorney who has been handling it.  Yesterday, he apologized for the delay.  But one has to wonder, what the hangup is here.  The attorney, by the way, has not requested Elin Howe’s letter to me.

I’m not optimistic about ever getting these records, given the findings of a CommonWealth magazine article last year about the routine flouting of the Public Records law by agencies throughout state government.

The Wrentham records are one of two public records requests that DCAM has denied the Fernald League.  I’ll write about the saga of our second request in a future post.

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Fernald and the folly of unchecked privatization

Posted by David Kassel on January 14, 2008

A bitter battle over privatization is being fought in federal court in Massachusetts.  It’s one that has garnered little substantive media coverage in the state, yet it promises to have lasting consequences for the care of some of the most vulnerable members of society and for the role of government itself in this state. 

The battle is over the fate of the Fernald Developmental Center in Waltham, Massachusetts, the nation’s oldest, state-run facility for persons with mental retardation.  The administration of Gov. Deval Patrick, which is seeking to carry out the former Romney administration’s plans to close Fernald and privatize its services, is appealing  U.S. District Court Judge Joseph Tauro’s ruling last year that Fernald must stay open to its current residents.  

By way of disclosure, I have been working as a consultant to The Fernald League for the Mentally Retarded, Inc., a nonprofit, family-run organization seeking to keep Fernald open.   However, I’ve written this and a previous entry, about how the Patrick administration has politicized Fernald cost-benefit numbers, on my own volition.

I think it’s important to know what’s at stake here and what the state is potentially giving up in closing an institution such as Fernald and very likely the five other remaining state facilities in Massachusetts for persons with mental retardation.  (Administration officials insist they have no plans right now to close any facility other than Fernald, but I think it’s unlikely they would be underaking the expense of this legal battle in the U.S. Court of Appeals if they didn’t have ambitions to close other state facilities as well.)

Here’s what the state and its citizens and taxpayers will be losing if the Patrick administration wins its appeal:

1.  They will lose a long-held state asset—190 acres of land and buildings—in exchange for one-time revenues from developers purchasing the property.  The Department of Mental Retardation has already signed 20-year agreements with a contractor to lease homes in the community for some of the transferred Fernald residents.  The state will not own those properties even though it will be paying up to $2 million per home over the 20-year period

I should note that the Fernald League does not oppose the sell-off and development of most of the Fernald Center campus, and has proposed a “postage-stamp” arrangement under which the current residents would remain in a smaller, designated section of the grounds.  The Patrick administration, however, has declined all offers to negotiate such an arrangement.

2.  They will lose a source of high-quality state-operated care for persons with mental retardation.  This care will ultimately be assumed by contractors, who are more interested in preserving their bottom lines.  This is evidenced by the fact that levels of staffing in community-based, privatized group homes are lower than in state facilities such as Fernald, and by and large community-based staff have little or no health care benefits.

It is this lower level of staffing and lower levels of pay and benefits that are driving the administration’s assertions that the state will save money in closing Fernald.  The problem is that facilities such as Fernald serve individuals with the most severe and profound levels of mental retardation and extensive medical needs in the state.  These people don’t represent the average population in the DMR system, who, by and large, have more mild to moderate levels of mental retardation.  And yet the administration insists, without any explanation, that when these fragile Fernald residents are transferred to the community, they will receive equal or better care there.

 3. They will lose the ability to oversee the care and services provided by the DMR.  In a brief filed in 2006 in the federal court case over Fernald, the Wrentham Association, a plaintiff in the case, noted that DMR’s oversight of the community system is inadequate and relies largely on consumer satisfaction surveys and reviews whose reports are not available until long after the data have been collected.

In addition to eroding the ability of the state to oversee care provided in thousands of community residences, the spread-out community system erodes families’ ability to organize and advocate effectively for their loved ones.  DMR officials have shown that they understand the power of this advocacy.  When families of DMR clients have gotten together to hold DMR to account for its treatment those clients, DMR officials have threatened to evict those clients from their residences and split the families apart.

In its notice of appeal last September in the Fernald case, the Patrick administration stated that the decision to close Fernald is:

…consistent with a national shift away from institutional care in favor of community living.  Decades of research indicate that community settings offer people with mental retardation the best care available and the highest quality of life. 

The first sentence of this statement is true, and the second is false.  It’s true that there has been a national shift away from institutional care in the past three decades.  In state after state, families of residents of state-fun facilities have been fighting uphill battles to save them.  What is false is that the privatized alternative to the facilities provides the best care available and the highest quality of life.

In Massachusetts, the 2006 legal brief filed by the Wrentham Association detailed a privatized system of community-based care in Massachusetts that is at the “breaking point.”  Levels of physical and sexual abuse, medication errors, and outright neglect were far higher in the privatized community system on a per-resident basis than in the state facility system, the brief stated.

It is patently false, therefore, to say that community settings provide the best care available or the highest quality of life.  If that was the case, families of residents in institutions would be clamoring to get those residents out of the facilities and into the community settings.  Instead, they’re fighting to keep them in.  This has forced the privatization proponents to adopt the condescending position that these families don’t know what’s best for their own loved ones.

In June 2007, a Boston Globe editorial, headlined “The Folly of Closing Fernald,” called on the Patrick administration to “stop sparring with a judge (Tauro) whose rulings are consistently in the best interest of the Fernald residents,” and craft “a solution that makes economic and therapeutic sense.”  The administration, however, has chosen not to follow either of these pieces of advice.

Simply because a practice or governmental policy has become a trend doesn’t make it inherently good or right.  As the Globe stated, “deinstitutionalization is not the right remedy for every man and woman with mental retardation, despite the assertions of advocates for group homes.”

In Latin America, country after country have been reversing the privatization trend in recent years, recognizing the economic demage that privatization and deregulation have inflicted on their economies since the 1970s.  Is there really agreement in this country that privatizaton and deinstitutionalization have been uniformly good things?

 

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