How the First Circuit Court killed high-level DDS care

Before discussing the Appeals Court decision, let me concede to the facility closure advocates that the comprehensive level of services provided in ICF facilities is indeed “outmoded,” at least in this state.  It is outmoded because it is being replaced by a less comprehensive care model.

ICF care is specified in Title XIX of the U.S. Social Security Act, which authorizes Medicaid funding to the states.  Regulations under Title XIX specify facility staffing levels and treatment services, and requirements for health care, physical environment, dietetic services and other areas.  In coming years, all services to persons with mental retardation in Massachusetts will be provided by private vendors under a waiver to the strict requirements of Title XIX.

Here are a couple of examples of the differences between ICF care and care in the community-based system, which operates under the waiver: 

Under ICF care in Massachusetts, medical, clinical, physical therapy, and other services are provided on the facility site.  Doctors and nurses are available on site, 24 hours a day.  Under the community-based waiver system, nurses, clinicians, physical therapists and other personnel float among the group homes in a geographic region. 

Under ICF regulations, only doctors or licensed nurses may dispense medications to facility residents.  Under the waiver, non-licensed, direct-care staff can dispense most medications after taking a 16-hour course.

Then U.S. Attorney Michael Sullivan noted some additional differences between ICF and waiver-based care in his March 2007 report to Judge Tauro on circumstances sourrounding the tranfers of residents from Fernald in the previous four years.  Sullivan stated that physican and dental services took “much longer” to arrange  in the community system than they did at Fernald.  And certain types of therapy were “more difficult to access” in the community.

Sullivan also expressed concerns about low pay and high staff turnover in the community system as well as a higher incidence of physical and sexual abuse and neglect in the community system. 

This brings me to the Appeals Court decision.  The Appeals Court contended that Tauro was wrong in declaring that the administration's “global policy judgement” that Fernald be closed amounted to a “systemic violation” of the residents' Individual Support Plans (or plans of care).  Similarly, the Appeals Court said there was no evidence that the administration had violated Tauro's 1993 disengagement order from the landmark Ricci v. Okin lawsuit, which had led to significant upgrades in care at Fernald and the other ICFs. 

But much of the Appeals Court's reasoning appears to be based on some very technical compliance issues, such as the fact that Tauro's 1993 disengagement order didn't actually state that care had to be equal or better in locations other than Fernald, but only that the facility superintendent had to stipulate that it would be equal or better.

Moreover, the Appeals Court contended that:

…the removal of one of several available residential facilities which have been found to comply fully with the Disengagement Order (namely Fernald) cannot itself result in there being a violation of the ISP (Individual Support Plan) process. [emphasis added]

In other words, because there were five other state Intermediate Care Facilities available, which were capable of providing care that was equal or better than Fernald, the Appeals Court concluded that shutting Fernald would not impede the residents' ISP processes.  Yet, just two months after the Appeals Court issued its ruling, the administration announced that it was going to shut an additional three of those five remaining ICFs, and was considering shutting a fourth. 

Currently, the administration is promising only that the Wrentham Developmental Center will stay open beyond Fiscal Year 2013.   While he stated in his 2007 report that other ICF-level facilities in Massachusetts were capable of providing equal or better care to Fernald residents, Sullivan noted that:

The plaintiffs (Fernald families and guardians) fear that following Fernald's closing, Wrentham, Monson, Hogan, Glavin, and Templeton will soon follow.  The plaintiffs hold a genuine fear of years and years of shuffling sons, daughters, and wards in an attempt to stay ahead of the next closure before being forced into community residences.

Perhaps not surprisingly, Sullivan's statement about those fears of further facility closures was not mentioned in the Appeals Court decision.   Yet those fears have turned out to be quite realistic.  Monson, Glavin, Templeton, and most probably Hogan will follow Fernald in closing over the next four years.  One might argue that the Appeals Court decision was based on a key assumption that is no longer true.

The Appeals Court also pointedly noted that the ISP process focuses only on the services a resident is to receive, but doesn't specify where those services are to be delivered.  In other words, as long as the same services are available elsewhere, the ISP process is not violated.

But the Appeals Court didn't appear to have anticipated situations such as the pending closure at the end of June of the Tufts dental clinic at Fernald, with no money in the budget for moving that facility elsewhere.  We don't see how those services can be duplicated elsewhere for many Fernald residents.

The Appeals Court also accepted without any of its own analysis the administration's claims about the cost of operating Fernald compared to the cost of community-based care.

Finally in ordering the dismissal with prejudice of the claims brought by the Fernald plaintiffs in this case, the Appeals Court has made it virtually impossble to reddress what we consider to be continuing violations of the consent decree at Fernald.  These violations include a continuing deterioration of staffing levels and other conditions at Fernald, which the administration has allowed to take place in order to force guardians into quick decisions to move remaining residents out of the facility.

We have written here before about our concern that the administration is going to use this self-created staffing safety issue at Fernald to declare an emergency in order to move all remaining residents out as of July 1.

The key problem right now is that the Appeals Court left no practical room for the Fernald plaintiffs in the Ricci case to bring these violations of the consent decree back to federal court.  The dismissal with prejudice of the previous claims means that the plaintiffs would have to start the whole process over of reopening the Ricci case.  It took a year and a half to get the case reopened in 2006.  There's no time left to address the violations at Fernald.

It's important to remember that Judge Tauro never stated or ruled that the administration couldn't shut Fernald.  What he did do was to
place himself in a position to ensure that the closure process was done correctly and that the Fernald residents rights were protected.

In our view, the Patrick administration regarded Tauro as an obstacle in the way of shutting Fernald and the other ICFs as quickly and conveniently (for them) as possible.  Tauro had to be removed from the process, and the Appeals Court decision accomplished that.

The Appeals Court has set the precedent.  From that decision forward, the state has been free to use whatever means it wants to close down ICF-level care and substitute the waiver model.  And whether there are violations of state or federal regulations or consent decrees in the process, there isn't much anyone can do about it.