To our knowledge, no guardians have yet filed appeals of the planned transfers from Fernald. But that's only because the Department of Developmental Services has not yet officially notified them that their wards will be transferred.
There are currently about 100 residents remaining at Fernald. We believe that at least some of those residents will still be at the facility come July 1 because their transfer appeals will be underway by then.
The law and accompanying regulations state that DDS must send a letter to a guardian with a 45-day notification of a prospective transfer. Should the guardian object during that period, DDS has 20 days to ask for an adjudicatory proceeding.
An adjudicatory hearing must be held within 90 days after DDS asks for it, and the burden of proof at the hearing is on DDS to show the transfer is in the resident's best interest. The hearing officer has 30 days after the hearing to issue a ruling, and the parties have 20 days after that to appeal to the Superior Court system.
No transfer of a resident can occur during the appeal period. However, in the case of an emergency, which is not defined in the statute, the appeal process goes out the window, and all residents can be transferred immediately. The regulations define an emergency only as “involving a serious or immediate threat to the health or safety of the individual (slated for transfer) or others.”
This raises a number of questions about what will happen as of July 1: Will the administration allow appeals that are ongoing at that time to proceed, thereby potentially delaying the closure of Fernald for months? Or will the administration invoke the emergency clause in the statute and regulations, and immediately remove any residents who are still living in the facility after July 1?
And if the administration were to declare an emergency, on what basis would that declaration be made? And who would be called in to remove those remaining residents from Fernald as their guardians presumably stood by in protest?
This isn't some far-fetched discussion. We have received informal indications from the administration that the Governor is contemplating an emergency declaration to close Fernald if appeals are ongoing after July 1. Moreover, during a recent night-time power outage that occurred at Fernald, an administration official said a plan existed to transfer all residents then and there to Wrentham. Apparently, the only reason the plan wasn't carried out was that the lights came back on within a couple of hours.
On January 15, we wrote a letter to Governor Patrick, asking if it was indeed the case that he is considering issuing an emergency order to close Fernald immediately after July 1. Perhaps not surprisingly, we have not received any response to our letter.
We're left to speculate about the possible emergency that would justify closing Fernald after the start of the new fiscal year. Here's one possible scenario: The seeds of the “emergency” were created last month when the governor submitted a state budget for the next fiscal year that reduced the line item for the DDS facilities by $11 million.
Can't you see the administration saying as of July 1 that an emergency exists at Fernald because there isn't enough money in the budget to operate it safely? Never mind the administration would have deliberately created that “emergency.”
For that reason alone, we hope the Legislature restores the $11 million to the facilities line item for next year. While many of us believe now that there is nothing that will stop the ultimate closure of Fernald, the law gives guardians a legal process to challenge that closure on an individual basis.
We hope the administration doesn't try to circumvent that right by creating a phony “emergency.”
If you won’t take care of them, don’t care about them, wish they would just go away, a Modest Proposal.
2. The governor decides at the “last” minute to keep the school open. Right about the time he decides we’re able to open the state parks for the summer.
Governor Patrick: Please bear in mind that these people are the most vulnerable human beings we have. Please do the right thing, and not use people to make political hay.
You’re not going to hear ANYTHING from behind the iron curtain of the DDS. These are folks that prefer to operate a certain way, underhanded way – to wit: the transfer of Anna Tross. They do not want to be bothered with the concerns of guardians or the needs of these vulnerable people. You can assume there will be a phony emergency that will necessitate a transfer without guardian approval…you can assume that the sole concern of the vendor department heads and the vendor advocates is the complete, unimpeded takeover of the Dept. of Developmental Services.
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p>This is the kind of people that our good governor has hired, and until he leaves office, this is how the Dept will be managed. Grace Ross is looking pretty good to this Democrat.
Down syndrome and mental retardation are not illnesses. People with down syndrome and mental retardation do not need medication to make them better, what they need is the right to be accepted by society the same as everyone else… Our Dear Govoner and the DDS have turned their head away from these people that need them the most to save their homes. I don’t know how The Govoner or DDS sleep at night! It was recently said to me that
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p>mam
I hope they have as many sleepless nights as the guardians.
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p>I know the sleeplessness will not be the result of a guilty conscious for what they are doing, but from worry about losing their jobs because they have not met population reduction quotas.
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p>I echo your thoughts on dereliction of duty.
Thank you Dave for another illuminating post. It’s a good thing to raise these questions now. The regulatory process you describe would probably be fair and reasonable in a law-abiding state administration, however, there is nothing law-abiding about DDS or its administration. They do not abide by the law or the regulations, and that includes those of them who may be licensed.
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p>I think you can count on Patrick to do things in a way that evades the regulations, avoids the guardians, denies family participation and input, and then fraudulently claim that what everyone ends up with is equal or better.
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p>This ain’t no democracy, and it hasn’t been for quite some time. I haven’t figured out what it is, but I’ve heard the term oligarchy and that seems somewhat appropriate.
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p>Here’s hoping they all get back what they dish out—tenfold!
The administration is clearly hell bent on closing Fernald. Taking this extreme action would definitely not be the smartest thing for a politician to do who is up for re-election. But this politician hasn’t exactly done anything smart regarding this situation. Hopefully these comments will let them know we are wise to this particular strategy. While I don’t want to believe he would stoop to this extreme, frankly it scares the hell out of me, but given what has happened to me recently I would not be surprised.
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p>Here is an example of the kinds of things that guardians are being put through (besides the neverending phone calls and letters) to achieve the Governor’s mandate.
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p>Had an ISP on 1/5. Got it to review and approve or appeal on 2/4. Have 30 days (3/5/10) to respond. On 2/24, BEFORE my 30 day review period expires, got a modification ISP. So whats the story? How can they modify an ISP I haven’t agreed to yet so technically it doesn’t officially exist to be modified. Since the new ISP does not exist are they trying to modify the old ISP to change this particular item that was not presented to me on 1/5.
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p>It is the most critical item in the ISP. They expect me to agree to all but eliminate the oversight of my wards ability to cause himself life-threatening injury and replace it with another problem (skin-picking & rubbing). A problem yes, life threatening, not even close. To boot it is being recommended by a new psycology team member who has no long-term knowledge of my ward and what triggers that behavior. He thinks that since he hasn’t tried to kill himself in the last eight months it isn’t a problem anymore. My ward is 55 and has been doing this his whole life. It is triggered by any change in his life or his environment. So it makes perfect sense to take it out when they are planning to completely turn his life upside down. It is signed by someone whose signature I don’t recognize.
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p>It is clearly an attempt to water down the ISP to have some basis to deny my ward ICF/MR level services.
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p>Just another example that they can do what ever they want, whenever they want. They are accountable to no one.
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p>P.S. Late to this post….power and internet just restored after being out since Thursday. Sorry about that.
It’s called corruption! This sort of DDS conduct is not uncommon. When they take an action and they don’t like the outcome they want a do-over. It causes one to wonder why with so large an administration they don’t seem to know what they’re doing. And that psychologist is no psychologist–he’s a DDS puppet. I actually feel sorry for some of them.
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p>Does anyone know when
GovernorPatrick’s last day is?Is injurious behavior. In allowing your ward to continue this action: the workers are holding themselves personally liable IMO.
Miss Amber: Got a legal opinion?
my friend used to slap himself, leaving bruises and welts. The residence people wanted to restrain him. My late wife, an employee, advocated with his mother and defeated that idea.
I agree. It is managed in an unrestrive manner–cotton gloves. But the life-threatening injurious behavior is what they want to reduce oversight of. Specifically, ingesting anything he can get his hands on. His digestive system, throat to the other end is a mess, because of various objects he has ingested over the years, many which have required surgery to remove. Some items that “passed” were a miracle….like a latex glove.
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p>While both need to be in the ISP, if I have to pick one, its no contest. Just because he hasn’t ingested anything (that we know of) in the last 8 months doesn’t mean the problem is solved. Its preposterous to even suggest it.
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