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Judge rules against Fernald transfer

June 17, 2011 By dave-from-hvad

(Cross-posted from the COFAR blog)

A state administrative judge has thrown a new hurdle in the path of the closure of the Fernald Developmental Center, ruling that moving one of the remaining 14 residents out would not be in that resident’s best interest.

In a June 9 decision, Administrative Law Magistrate Kenneth Forton ruled that the resident, identified as Daniel O., would not receive improved services and quality of life if he were moved, as planned, to the Wrentham Developmental Center.

This is the first appeals case to be decided in favor the remaining Fernald residents, whose guardians have appealed the transfers to the state Division of Administrative Law Appeals.  The appeals have already kept Fernald open a year beyond the administration’s planned closure date;  and the administration appears to be projecting that the Center will stay open at least another year as a result of the ongoing litigation.

But before the Association of Developmental Disabilities Providers (a.k.a. ‘dcjayhawk’ on this site) once again rushes in to blame the guardians of these intellectually disabled residents for the cost of delaying Fernald’s closure, let me pre-emptively make a few points:

1.  As the guardians’ attorney, Stephen Sheehy, has pointed out, the appeals are not intended to keep Fernald open.  They are based on a state law, which says that the state must show that a resident’s services and quality of life will be improved if he or she is to be transferred to another location.

In the case involving Daniel O., the administrative magistrate has concluded that he will not receive improved services or quality of life as a result of the move to Wrentham, at least under the circumstances established by the Department of Developmental Services.  If DDS can demonstrate that the move will be in Daniel O.’s best interest, his guardian will not object to it, Sheehy says.

2.  It is DDS, not the guardians, that is responsible for the cost of keeping Fernald running for the 14 remaining residents while the appeals are pending.  DDS has continually refused to discuss longstanding proposals by the guardians and other advocates for a settlement of the dispute.

For years, we have proposed a “postage stamp” arrangement for Fernald under which new, cost-effective housing would be provided in a reduced section of the campus for the current residents, while the remainder of the campus was developed for other uses.  A compromise based on the postage-stamp idea would end the entire litigation process and allow the state and the Fernald guardians and families to move forward with a cost-effective plan for the future.

Sheehy has stated that DDS remains uninterested in negotiating any type of compromise settlement.  The adminisration has even refused to discuss proposals for saving money during the appeals process by consolidating the remaining residents into one building or location.  Right now the residents are dispersed among several buildings on the campus.

3.  The ADDP has repeatedly inflated the current cost of operating Fernald, stating erroneously that the state is spending as much as $1.3 million per month for the remaining residents there.  In fact, the $1.3 million is an average figure for care throughout the entire current fiscal year, during which there have been as many as 70 residents at Fernald.  The reason for the per-person cost at Fernald has risen is solely due to the mathematical fact that the number of residents left there has steadily declined.  It is a reason to look for more cost-effective ways to operate the Center,  but DDS inexplicably refuses to do.

4.  The ADDP has wrongly stated that  the continued operation of Fernald and the other developmental centers for a small number of people is taking away funding for thousands of people in the community.  This is comparing apples to oranges.  Most of the people in the community system don’t have the high level of needs that the developmental center residents do.  Even if the centers were all closed tomorrow, the state would still have to spend a much larger-than-average amount of money per person to care for those former residents elsewhere.

Think of it this way:  A university with 30,000 students buys 80 helmets for the football team.  The ADDP is effectively arguing that this is unfair — the school should be buying helmets for everyone.  It’s a false argument.  Not everyone in the school needs a helmet; in fact, only a small minority need them.  If the school, out of a misguided sense of fairness, decided not to buy the helmets for the team, it wouldn’t save money in the long run.

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Filed Under: User Tagged With: fernald-developmental-center, intellectual-disabilities, patrick-administration

Comments

  1. AmberPaw says

    June 17, 2011 at 3:04 pm

    We, as a society, will one day be judged not by budgets but by how we have cared for the vulnerable and disabled among us.

  2. justice4all22 says

    June 19, 2011 at 9:38 pm

    A judge has reviewed the evidence and has found the DDS and all their plans and schemes wanting. Memo to Elin Howe, the vendor advocate DDS Commissioner – pony up on those services. These are class clients you’re dealing with and their guardians weren’t born yesterday.

  3. adnetnews says

    June 20, 2011 at 3:05 pm

    It’s very encouraging to hear that Judge Forton was able to see with clarity the inappropriateness of the proposed move for Daniel O. Common sense prevailed.

    The analogy of the football helmet purchase in point #4 above is excellent. And regarding the “postage stamp” proposal in #2, I still can’t understand DDS’s refusal to acknowledge the reasonableness of such a plan. True, this stamp would cost more than 44 cents, but it would save a ton of money in service, maintenance, and legal costs.

  4. mahu says

    June 20, 2011 at 3:09 pm

    I appreciate Dave’s challenging what would be the response from those who persist that community care for our relatives is the only humane option. Those of us who watch over our loved ones can attest that care at Templeton (I am not familiar with the other sites) has contributed to the quality of life of our family members.
    The postage stamp solution at Fernald is so simple…who would truly oppose it? Perhaps only those who insist that the commonwealth is overspending?

    mahu

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