Patrick isn’t touting this accomplishment

So, does the governor still plan to close the Fernald, Monson, Glavin, and Templeton Developmental Centers?  Absolutely.  He just doesn't want anyone talking about it right now.  Why?

“There's nothing to be proud of in evicting retarded people from their homes,” says Thomas Frain, an attorney representing four of the more than 20 Fernald guardians who have filed administrative appeals of the pending transfers of their wards out of Fernald.  “For most of their residents, the developmental centers have been their home for most of their lives.  It's as if the state is foreclosing on their homes.  And it's unnecessary.”

Another reason for the Patrick campaign's apparent reluctance to tout the developmental center closures may be the bad press the administration has gotten for letting conditions deteriorate at Fernald as it has cut staff there.

However, as politically dicey as it may be to close these facilities, Frain maintains that Patrick is going ahead with with that plan because he is beholden to the powerful human service vendor lobby in Massachusetts, which receives $1.3 billion a year in state funding and which has provided the governor with political support and campaign contributions.  The vendors are seeking additional state contracts as the developmental centers are closed and the residents are transferred to the privately run community system.

The result is that the governor is carrying out the Fernald closure behind the scenes.  In fact, he has opened the public purse strings in that effort.  The administration spent $3.2 million this past spring to rehab two vacant buildings at the Wrentham Developmental Center in order to house some 60 transferred Fernald residents.  The contractor was made to “work around the clock” to get the place ready by the original Fernald closure date of June 30. 

Meanwhile, no fewer than seven attorneys from the Department of Developmental Services are working in opposition to the guardians' ongoing administrative appeals of the transfers of their wards from Fernald.

State law allows guardians to appeal transfers before a magistrate of the state Division of Administrative Law Appeals.  The law and accompanying regs state that if a guardian appeals a transfer, the state has the burden of proving that the transfer will result in “improved services, supports and quality of life” for the resident in the new location. 

Frain said the DDS attorneys started out by filing a 225-page motion this past summer to dismiss the first appeal that had been brought before DALA.  That motion was denied by a DALA magistrate.  The DDS then went on to file a slew of additional motions, including one that would have barred the public from attending the DALA hearings.  That was denied as well.

The Fernald guardians, who are appealing the transfers of their wards, have formed a group called Fernald Forever Families, which has received $10,000 in funds for their legal fees from the statewide Massachusetts Coaltion of Families and Advocates (COFAR).  The Fernald Corporation, the founding organization of The Fernald Center, is considering an even larger donation; and support has come as well from the national VOR.

Frain said he believes that the DALA appeals cases are “going to rise and fall on the first few wins and losses.  If we prevail,” he said, “it's going to be very difficult to close Fernald.”   Thus far, there's little indication how the cases might be decided.

Whatever, the final outcome, there is no doubt that the appeals have held up Fernald's closure.  The administration's plan had been to close Fernald, as noted, as of last June 30 and to follow that up with the closures of three additional remaining developmental centers by Fiscal Year 2013.

As a result of the appeals, DDS Commissioner Elin Howe has reportedly sent a letter to the guardians saying there is now “no formal closure date” for Fernald.  In addition, Howe has reportedly put a hold on plans to move remaining residents at Fernald into one consolidated area on the campus prior to transferring them elsewhere.

Marilyn Meagher, President of the Fernald League, says she has heard that the reason behind the delays in the closure and in consolidating the residents' housing at Fernald is concern about the impact of any news about Fernald right now on the governor's standing in the polls.  That may also explain why the administration has not made a move to close Fernald under an emergency declaration, which would allow the administration to bypass the DALA appeals process entirely.

We have written here in the past about our concern that the governor might give the go-ahead for the immediate closure of Fernald by contending that cuts in its operational budget have made the facility unsafe.

Frain says a DALA magistrate warned DDS's attorneys that any attempt to declare such an emergency while the appeals are ongoing would be “viewed suspiciously.”  Nevertheless, he says, the DDS attorneys have repeatedly stated during DALA proceedings that they intend to close the facility and have continued to give projected closure dates, which keep getting pushed back.

One guardian of a Fernald resident said her own appeal of her ward's transfer had been scheduled for a DALA hearing in late December.  She said she knows “several people who are committed to taking it to the next level if they get an unfavorable ruling from DALA, and who knows how long that would take.”  The next level she was referring to is Superior Court.

If nothing else, one has to admire the grittiness and determination of these remaining guardians.  As Frain puts it, “My take is these guardians believe there is no equal or better care outside of Fernald, and they won't leave without a court order.”

Those guardians have certainly made the politics behind closing the developmental centers a little more difficult for the governor and the human service vendors.