Accountable Strategies blog

A blog about accountability issues in the public, private, and nonprofit sectors

Posts Tagged ‘Public Records Law’

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 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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