As a matter of disclosure, I work for one of the original plaintiff’s (MARC v Dukakis) that were consolidated into the Ricci case.
The Arc of Massachusetts (our current moniker) does not have any fiscal obligations to the state, although we are often portrayed by our critics as either beholden to state agencies and/or the vendors who rely upon state contracts. One reason we have been so effective over our fifty year history is that since we do not carry any baggage, we are free to work on behalf of our constituency without fear of reprisals – often times at great discomfort to the Commonwealth and the Feds in court, or through statutory and regulatory proposals that many in state govt. and the vendor community would politely characterize as a nuisance.
As anyone following the Fernald story realizes, this is a tremendously complicated issue, but the stakes are high for anyone in Massachusetts who pays taxes and/or cares about the needs of people with disabilities. If anyone needs a recap, I have compiled a summary from the early 1970’s to date, that probably leaves out too much detail, but for those unfamiliar with the story of how we got to this place, you may be interested to read it. If not, scroll down to the questions and answers section were you can read my editorial commentary on the present, and possible future of the Fernald saga.
I did want to address one specific point that has been asked repeatedly and which is a common sense question – who stands to profit? I feel some of the public officials who have portrayed themselves as champions of the Fernald residents have been disingenuous about their image in this regard. I comment and name names in an editorial that was published in the March 27, 2007 Waltham Tribune.
With an annual budget of $1.2 billion, the Massachusetts Department of Mental Retardation (DMR) is the largest agency within the Executive Office of Health and Human Services. $182,759,388 of the DMR budget is spent on operational expenses for the six developmental centers that serve approximately 3.4% of the total DMR-eligible population of approximately 32,000 adults. To see how these dollars are distributed, view the spreadsheet on the following page. (all accounts are now final for FY08).
Since 1977, over 85% of the population of the six large institutional facilities overseen by DMR housing people with mental retardation (the currently-accepted term is people with intellectual disabilities) have moved into community-based settings. Admissions have been closed since that time. Roughly 1,100 remain in the six institutions, with all the buildings, land and many support staff needed for the existing large physical plants. Other facilities known as State Hospitals (such as Westboro State Hospital) are operated by the Massachusetts Department of Mental Health (DMH) and are not part of the current debate surrounding the DMR institutions.
In 2001, Governor Mitt Romney directed DMR to begin a process of consolidating the state schools, beginning with the closure of Fernald. In response, some of the family members who are legal guardians of Fernald residents petitioned US Judge Joseph Tauro to reopen the Ricci v Okin case, arguing DMR had violated the rights of the 43 residents who had transferred out of Fernald since 2003.
On February 9, 2006, Tauro appointed US Attorney Michael J. Sullivan to investigate these claims. On August 14, 2007, After a review of Sullivan's report, Tauro issued an order on the original motion. Tauro said that DMR must continue to offer Fernald as an “option” to current residents. Taken literally – if the decision stands, the closure of Fernald, along with all of its resources, will drag on, potentially until the last resident/or guardian refusing to move into the community OR transfer, is deceased. If the decision stands, it will set precedent and the same process will inevitably occur for each of the other 5 remaining institutions. For more detailed analysis, including links where you may download a copy of both Judge Tauro's order and memorandum, go to the following link on our webpage.
Governor Patrick has until September 14, 2007, to appeal Judge Tauro's order.
For those completely unaware of the record of the horrendous conditions within institutions that led to significant changes nationally, you may find it helpful to first view material at the following link where I chose two case studies to demonstrate some of the history (check out a very young rookie reporter named Geraldo Rivera).
I have presented the issue in a question and answer format:
1. What are the benefits to people served by the Massachusetts Department of Mental Retardation and the general community to closing Fernald?
While state school admissions have been closed and populations have dec
lined at institutions in Massachusetts, the need for community services has grown. The state can no longer afford both a growing community service system and the capital costs associated with maintaining aging institutions that serve a decreasing number of individuals. Major capital expenditures for deferred maintenance and required upgrades can be avoided, if all six facilities are closed.
Both Congress and the U.S. Supreme Court have made strong statements to establish integrated, least-restrictive services as a legal right (Civil Rights Act, 1965; Home and Community Based Medicaid Waiver, 1981; Americans with Disabilities Act (ADA), 1990; and the U.S. Supreme Court’s Olmstead Decision, 1999). Yet overly-restrictive services persist. “Society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem” (ADA preamble).
Despite some progress, Massachusetts continues to lag in its implementation of these federal and state directives and continues operating six institutions, while nine states/territories have eliminated them (Alaska, District of Columbia, Hawaii, Maine, New Hampshire, New Mexico, Rhode Island, Vermont and Wisconsin). Two other states (Minnesota and Oregon) have less than 50 individuals residing in institutions.
Massachusetts is unique among New England states in its maintenance of six large institutions. Although admissions are closed, almost $200 million is allocated to fund state institutions on an annual basis for operations. In addition to providing new community-based services to the less than 1,100 individuals remaining at the state schools, funds could be reallocated to enhance existing services. The Commonwealth has made minimal progress towards institutional closure and reinvestment in the community. In fact, thus far, Governor Patrick has actually cut funds for many community-based housing programs that benefit people with disabilities.
The question has often boiled down to one of choice, as families claim the right to choose services for their loved ones. Consider the following dynamics, if the Commonwealth continues to fund individuals at Fernald:
The average per-head cost of serving people at Fernald is open to some debate. Understandably, state officials have hedged on identifying a definitive number, as such information could be cited in a future court action. Using a recent neutral source, The Boston Globe reported on March 8, 2007, that there are 180 residents at Fernald with a budget of $60 million which equals an average cost of $333,333/person/year plus the cost of renovations. The annual Fernald budget does not include the amortization cost of past renovations or the cost of health insurance or retirement for the state employees at Fernald. This might bring the total per capita cost close to $400,000/person/year.
In his FY2008 House 1 Budget, Governor Patrick proposed spending $5.5 million for the “Turning-22” DMR account to serve approximately 600 young adults aging out of public school systems (with their legally-mandated right to special education services) and entering the adult service system. This would provide an average cost of $9,167/person/year. Many of these people have profound needs, at least as significant as those typically cited at Fernald. According to (former) DMR Commissioner Gerry Morrissey, a local school system was funding one such individual who entered the adult DMR system at $500,000/year. We must assume this person’s needs will not lessen after turning 22, but the fiscal constraints of the adult system will likely force a considerable reduction in the amount of funding the person will receive from DMR. During the budget process, the Legislature added funds so the final FY08 T-22 account is $7.7 million, still a REDUCTION by $800,000 from last year's amount.
While my organization was an original plaintiff and continues to represent many of the existing 3,959 Ricci class members (the majority who now, ironically, reside in the community), we also advocate for many other individuals who are not protected class members. As advocates for a broader constituency, we argue the fiscal dynamic, as presented above, does not seem a fair “choice” to the 600 young adults turning 22.
2. What obstacles do we face in efforts to close Fernald?
Several barriers have precluded Massachusetts from expending the fiscal and political capital needed to successfully transform its delivery systems. First, there are major disincentives to move people into community-based settings when we have inadequate budgets to cover community care. In the preliminary stages of reducing state school population and developing community-based treatment options, research shows that states have to operate dual systems of care that may require higher appropriations. Dual funding is the result of state officials reluctance to scale down institutional staffing and the institutional population in the face of intense political pressure exerted by families of some state school residents and by labor unions representing workers employed at the institutions.
In the case of Fernald, two of the three unions representing the institutional workers have fought alongside families in an effort to stop closure and consolidation. The unions opposed to closure are the Massachusetts Nurses Association (MNA), and the American Federation of State, County and Municipal Employees (AFSCME). Representatives of the Service Employees International Union (SEIU) Local 509, that represents a small percentage of DMR employees working in institutions, have stated they do not oppose closure or consolidation.
This is not just a Massachusetts phenomenon. At the federal level, these interests have opposed federal legislation introduced by U.S. Senators Tom Harkin (D-IA) and Gordon Smith (R-OR), called The Money Follows the Person Act, an effort to put into bill form
language from President George W. Bush’s budget proposal(s) that would encourage states to allow Medicaid funds to “follow the person” as they move from nursing homes or other institutions into community based services.
According to a 2002 Technical Assistance Report for state legislators, published by the National Conference of State Legislatures, maintaining a dual systems of care (institutions and community-based services) is not sustainable. “Costs could be minimized when appropriate cutbacks in facility operations are made, followed by the fairly rapid closure of an institution. States that operate dual systems of care maintain funding for an institutional care system while simultaneously supporting community living. As long as states continue to operate large public facilities, state funds will be used to support those facilities, per capita costs of operating facilities will continue to increase and expansion of community services will remain stagnant or decline in the face of inflation. Massachusetts, Illinois and Texas operate dual systems.”
3. What options do current residents at the facility face if they are forced to leave Fernald?
In addition to rights afforded them under the Americans with Disabilities Act and the U.S. Supreme Court’s Olmstead decision, residents leaving Fernald enjoy significant lifetime protections afforded them as protected consent decree class members, the same protections afforded others who have moved into the community since the 1993 court-order was issued (with a few exceptions, adult DMR clients who are NOT consent decree class members are not entitled to services and are essentially held hostage to the annual state budget, competing with hundreds of other interests lobbying our elected and appointed officials for annual appropriations.
It is important to recognize that in his recent report provided to the court at the behest of Judge Tauro, US Attorney Michael Sullivan found no basis for the contention that the rights of 43 individuals who had left the facility in recent years had been violated as per terms of the consent decrees.
4. Given the recommendations by Attorney Sullivan, what do feel the next step will be?
We are hopeful Governor Patrick will appeal Judge Tauro’s order. It is time to complete the transition from isolated, hidden and “separate-but-equal” services to fully funded community inclusion. Other states have found ways to close more than 174 institutions or institutional units since 1960. Several states operate entirely without state-operated institutions for persons with disabilities. Clearly, cost, service quality, and lack of available successful community alternatives are not the reasons these institutions remain open. Instead, institutions for persons with disabilities remain open because some states lack the political will to close or downsize them.
Most states provide community supports to most or all of their citizens with disabilities. Most states have made policy decisions that acknowledge the substantially better quality of life and quality of care in community settings, and which support the right articulated in (irony of ironies) President George W. Bush’s New Freedom Initiative for individuals to be free of unnecessarily restrictive living arrangements.
For those who simply can't get enough of this stuff, Google some of the other organizations listed to get a sense of other's perspectives, or go to our main Fernald resource page where we have detailed information and links to keep you occupied for at least a couple of weeks
DISCLAIMER: Although many of the editorial positions outlined above reflect some of those of my employer, The Arc, the opinions in this posting are my own and are meant only to (hopefully) spur discussion and raise the interest of members within this forum about this issue.
I haven't had a chance to analyze JT's post in detail, but I do have a few comments after a first reading. (By way of disclosure, I posted an entry here last week on behalf of The Fernald League, calling for a compromise plan for a scaled-back version of the Fernald Center.)
First of all, JT says nothing about the Fernald families’ proposal for this compromise, which would involve maintaining a smaller version of the facility on a portion of the campus.
JT says the following:
The Fernald families' compromise calls for cost-effective upgrades to the housing and physical plant at Fernald. This could serve as a precedent for the other facilities as well. Yes, there will be a capital cost in this. But there will also be capital costs in closing Fernald and the other five facilities and re-establishing services and housing for their residents, which would be dispersed throughout the state. No cost-benefit analysis has been done regarding the closure of Fernald or any of the state facilities.
JT then goes on to repeat the tired, much rebutted, assertion that it is prohibitivley expensive per client to operate Fernald (although he at least admits now that the matter is open to debate):
I questioned the Globe’s use of the $60 million figure at the time because our latest budget figures for FY 2006 put the total Fernald budget at $39 million. I emailed Globe editor Marty Baron, questioning the fact that the $60 million figure was unattributed. The reporter, who wrote the article, responded to me that the source of the figure was an attorney for the Fernald plaintiffs in the Ricci v. Okin case.
This person is an excellent attorney, but there is no reason he would necessarily be privy to Fernald’s actual budget figures. As a consultant to COFAR, I had to go through months of requests to get even rudimentary figures on this. The bottom line here, though, as I’ve said many times, is it is meaningless to divide any total budget figure by the number of residents. Those residents do not exclusively or directly benefit from many of the services and costs included in Fernald’s budget.
In any event, The Globe never ran a correction regarding the $60 million figure, and they should have.
Finally, JT argues that the Arc has been wrongly portrayed as beholden to state agencies and/or the vendors. In July 2004, the Arc got sixty signers to a memo calling for Fernald’s closure. COFAR determined that 39 of them—or 60 percent—were private, nonprofit, or for profit services providers that contract with DMR.
The Arc has always promoted the closure of Fernald and the state facilities. The vendors see big dollars following the facility residents to privately run settings.
having the ARC appear to take a “divide and conquer” perspective towards the Fernald families seems to be divisive, unhelpful, and concerns me greatly. The “Disclaimer” does not solve this problem for me, at all.
The real problem in this case is that the state, by keeping Fernald open has abdicated its responsibilities to these families. The state has a responsibility to allow people with disabilities to live in the least restrictive setting possible — widely understood now to be in community settings where they can thrive.
The ugly truth that families of people with disabilities should be outraged about is that by closing Fernald the state will finally acknowledge that these people with disabilities who have lived there for their whole lives could have potentially lived more vibrant lives in community settings.
And Amber, I understand your point… but could you begin to understand realizing that as a family member of a person with disabilities who is responsible for his or her care, you too have abandoned your responsibility to provide your loved one with an environment that will allow him or her to thrive? These Fernald parents/guardians clearly don't want to realize the pain that they may have (inadvertently) caused their loved ones and denial is the best logical remedy for coming to grips with painful decisions of the past!
No, I am not the caregiver to someone in Fernald.
No, I do not see that the lives led there are Medieval and isolated, either. No, I do not work for Fernald and have no financial stake whatsoever in whatever is done…I do not stand to “benefit” either from Fernald remaining open OR from in closing, personally.
I think most members of COFAR would find your post uninformed, and perhaps, insulting.
So, “Migraine” I strongly suggest you go to http://www.cofar.org/
Please read the letter sent by COFAR on this very topic. To me, your letter displays fear and a lack of knowledge, and is not only not convincing, but sad.
With all respect to T as a skilled communicator, the statement that the ARC of Mass is unfairly portrayed as state involved does not stand up to even a quick look.
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Here’s what it says on your own webpage “Who We Are”
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As a man of the left, I won’t say that it is wrong to be an advocate and a service provider. But it is wrong or at least very, very technical to say that the ARC of Mass is financially independent of the Commonwealth.
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Disclosure: I have done work for COFAR, an advocacy organization for people with MR/DD that does not hold state contracts, and has some different positions from the ARC of Mass., although many others in common.
I’m not sure what “state involved” means, but I believe the intent was to say that The Arc’s policy decisions are influenced by our association with the “state” and its vendor agencies. I will grant that “it is wrong or at least very, very technical to say that the ARC of Mass is financially independent of the Commonwealth.”
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By that logic it is wrong or at least very, very technical to say that we are all financially independent of the state, since we all rely upon the state for a variety of services such as the upkeep, however deteriorating, of the roads on which we drive.
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What I posted, “[The Arc] does not have any fiscal obligations to the state, although we are often portrayed by our critics as either beholden to state agencies and/or the vendors who rely upon state contracts. One reason we have been so effective over our fifty year history is that since we do not carry any baggage, we are free to work on behalf of our constituency without fear of reprisals – often times at great discomfort to the Commonwealth and the Feds in court, or through statutory and regulatory proposals that many in state govt. and the vendor community would politely characterize as a nuisance.”
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Semantics aside, I guess additional proof is required to disprove a “quick look” that suggests The Arc is not independent ENOUGH from the “state”, although The Arc’s critique of the “Fernald Reuse Commission” in my previous post seemed (to me) to address the question of where our loyalties lie:
http://www.arcmass.o…
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I thought this was a pretty good example of why we are not willing to strike deals for short-term gain at the expense of the larger DMR community. Now that closure seems more immanent, I hear local officials expressing more concern about the Fernald property than the fate of its residents. In any event? let’s look at some other examples:
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The Arc’s priority state bill for the last 3 legislative two-years sessions would require potential DMR and contracted vendor employees undergo national criminal background checks by cross-referencing fingerprint data with the Integrated Automated Fingerprint Identification System, more commonly known as IAFIS, a national fingerprint and criminal history system maintained by the FBI’s Criminal Justice Information Services (CJIS) Division. This type of procedure, hardly unique, is already employed successfully in other states.
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The current CORI requirement is universally criticized as inaccurate, outdated and provides limited information pertaining to arrest and probate activity within Massachusetts. Individuals arrested and convicted of a violent crime in another state may apply for employment with DMR or one of its vendors, without any consideration of the applicant’s history beyond the Massachusetts border. There are no statutory or regulatory mandates requiring this information be made available to, or for the hiring authority to review, such information when considering potential job applicants.
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The Arc has worked very hard with “the state” (in this case, the Massachusetts Developmental Disabilities Council, Mass. Office on Disability and other state officials) along with other advocacy organizations such as the Mass. Down Syndrome Congress, Mass. Families Organizing for Change and law enforcement officials, to push for the adoption of this common-sense policy change – a previously-filed version of the bill was specifically referenced by the Massachusetts Inspector General in a 2005 report as a model public policy initiative to address the lack of interstate background checks for people seeking to work with vulnerable populations.
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If The Arc were unduly influenced by DMR and the vendor community, how could this initiative – potentially viewed as a logistical nightmare or an unfunded mandate from the perspective of both – become the number one legislative priority of The Arc?
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The Arc and the coalition we built clashed with other interests regarding this proposed policy change – sometimes winning support, as with the Governor’s Commission on MR, and former Commissioner Gerry Morrissey, and sometimes running into obstructions, as in the case of those fighting for “CORI reform” who view our bill as a threat to the ability of ex-offenders to secure employment.
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One of the true pleasures I found in the sometimes frustrating grunt work involved in moving this initiative forward, was meeting and working alongside the late Dick Krant, a staunch advocate for keeping institutions open, but also a tireless champion for people with disabilities for which he was recognized by being presented the Gunnar Dybwad Leadership Award, the highest honor bestowed upon a citizen by DMR. We agreed to put aside our differences and Dick was tremendously helpful in not only providing public testimony in support of the bill at the State House (as a parent, an attorney and a former FBI agent, Dick’s testimony was incredibly powerful), but in spending hours helping me better understand how our proposal could best fit into the infrastructure of the national law enforcement community.
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I mention Dick not to exploit his reputation in the context of this discussion, but to say that in Dick, as in other family members I have met over the 20 years of work in this field, I found a person deeply committed to a cause. I developed tremendous respect and admiration for Dick by working together with him on this common goal. I would like to think Dick respected my commitment to the cause, even though we would agree to disagree on the issue of institutions.
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It is in this spirit that I take exception to anyone who feels this writer or any other employee of The Arc of Mass. may be the beneficiary of some largess that was provided in exchange for an act or decision related to the Fernald debate. Even the suggestion that we are technically “involved” and by inference, compromised, does not stand up to scrutiny.
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I believe the majority of people with whom we disagree, however strenuously, do not fall into this category, but since the question has been raised, now as in the past, it deserves a response. The Arc does not hesitate to go to bat for families and individuals against any group, whether state, for-profit, non-profit, union, main-stream media (as is the case with the Boston Globe’s editorial page), and nobody I am aware of has ever done so for any reason other than the core values contained in our mission statement.
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Pawn of the vendors? Show me the money (seriously, show my wife the money!)
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We scrape by as an organization, raising most of our operating funds annually. Our chapters, (as has been noted, most are in fact DMR contracted vendors) contribute roughly 31% of our revenue. The rest of our funding comes mostly from grants, special event revenue, individual donors and sponsors who have contributed to the organization over the organization’s 50 years.
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Has anyone ever stopped to consider why, during the state budget debate every year, we don’t use our clout to fight for pork-barrel earmarks for our local chapters? We could – why not simply insert a couple of $100,000 Arc earmarks amidst a half-billion dollar line item – who would ever know or complain? Instead we advocate for funds and policies that benefit people with intellectual disabilities, their families and organizations, whether or not they are Arc members, affiliates or chapters.
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Pawn of the “state”? Consider the Boulet lawsuit. I have been at The Arc during four gubernatorial administrations, each different and each presenting their own unique challenges to our advocacy around the focal point of this lawsuit – the unserved. After examining the settlement of a similar lawsuit, launched in Florida, The Arc approached Neil McKittrick of the (former) firm Hill & Barlow who agreed and obtained his firm’s commitment to take on the case pro-bono. The Arc conducted research, outreached to plaintiffs – hosted at one of our chapters – SNCARC. The results – in residential supports after five years – $87.5 million in NEW dollars, 1,543 people and 92 Family Partnerships established.
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The Boulet settlement demonstrates when it comes to advocating for what we believe to be the best interests of our constituency, we do not hesitate to act – even if it means generating animosity from the “state” or sometimes discomfort for our Arc chapters, who may feel that by association, they may be the target of retribution (see, this works both ways). The next time you run into former DMR Commissioner Gerry Morrissey, ask him how popular The Arc was in the minds of “state” officials in the immediate aftermath of the Boulet settlement.
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I could go on with a laundry list of examples as to how The Arc’s mission (which not all may agree with) is not compromised, but what’s the point? One only has to look at the full list of The Arc’s current state bill platform to appreciate the scope of our efforts and the reputation of organizations with which we ally ourselves with:
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http://www.arcmass.o…
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Somehow, we manage to advocate for an array of causes, laws, regulations that far exceed the Fernald debate. With limited resources, we fight for funds for transportation, housing, health care, special education, autism services?
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So, for those who feel there is rampant graft and corruption festering within The Arc of Mass., here is some helpful information with which to pursue your claim:
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The Non-Profit Organizations/Public Charities Division of the Attorney General’s office retains records of annual filings submitted by Massachusetts charities. The annual filings are available for public inspection at the Division’s offices on the 11th floor of 100 Cambridge Street, Boston, MA. Copies may be made for $.25 per page. Presumably, on these reports, anyone can see how much this “skilled communicator” (I do appreciate the compliment Moe) earns to post long-winded responses at midnight, on top of all of the other work we engage in on a daily basis.
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Individuals are welcome to contact the Office of the Inspector General with information regarding fraud, waste, and abuse: The Office’s 24-hour hotline number is 800-322-1323. They should be familiar with The Arc since we assisted in a recent investigation that resulted in a finding that “the state” and several municipalities were over-billed by $800,000 (and no, there was no finder’s fee).
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Finally, the Massachusetts Auditor’s Division of Audit Operations has contract-related oversight responsibilities including reviews under the state’s Privatization Statute, and the audit of vendors and contractors that do business with the Commonwealth. 617-727-2075.
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DISCLAIMER: Although many of the editorial positions outlined above reflect some of those of my employer, The Arc, the opinions in this email are my own and are meant only to spur discussion within this forum.