(Cross-posted from the COFAR Blog)
Apparently unable or unwilling to resolve a dispute over the proper residential placement for a developmentally disabled man, the state is seeking to remove the man’s mother as his guardian.
The Department of Developmental Services has filed in Middlesex Probate Court to remove Patricia Feeley, a COFAR Board member, as guardian of her 27-year-old son, Michael, and to appoint James Feld, a Woburn attorney, in her place.
Feld is described in the petition only as an “advocate” for Michael Feeley, but DDS acknowledged in a court document that Feld had never previously met Michael.
DDS is not alleging any abuse or neglect of Michael, and in fact, has described Feeley in court documents as “devoted to him” and “concerned for his well-being.” However, the Department contends that Feeley has rejected several suggested residential placements for Michael and is not acting in his best interest. And DDS is further alleging that Feeley’s home, where Michael has lived his entire life, is not safe because it has excessive “clutter” in it.
Feeley has actively sought for several years to place her son, who has type 1 diabetes, in a suitable DDS facility. She maintains that the real reason DDS is seeking to remove her as her son’s guardian is that the Department doesn’t want to provide a residential facility for him with 24-hour nursing care.
“The Probate Court is the wrong forum for this case,” Feeley maintains, adding she would be “devastated” if DDS succeeds in removing her as Michael’s guardian. A pre-trial conference in the case was scheduled in Probate Court on Thursday.
Michael, who has profound intellectual disability, is non-verbal and is unable to dress or bathe himself. Feeley said she was told his IQ was too low to measure. DDS’s petition to appoint Feld as guardian suggests that Michael be moved to a group residence in Chelmsford that Feeley noted does not have continuous, on-site nursing.
A friend and advocate of Feeley’s, who visited the North Chelmsford residence with Feeley last summer, maintained that the nurses there travel among several residences, one of which is in Lynnfield, about an hour away. The friend contended there are no nurses on site in the Chelmsford residence during the evening shift.
Feeley contends her son, who requires as many as seven injections of insulin per day, needs a residence with 24-hour, on-site nursing care. Feeley, 65, who works as a part-time clinical lab technician and is a certified nurse assistant, currently administers the injections herself, monitors Michael’s blood glucose, and personally provides all other care at home for him. Michael’s extensive care needs prevent her from working full time.
Feeley’s assessment of her son’s medical needs is backed up by a May 28, 2010 letter from a physician at Children’s Hospital in Boston, who wrote that Michael’s blood glucose spikes at times “for no apparent reason,” and that “it is not possible to predict when that might occur.” The doctor’s assessment continues: “A nurse needs to be present and able to attend to Michael’s needs at any time to avoid a delay in Mike receiving appropriate medical intervention.”
DDS, however, contends that Michael does not need 24-hour, continuous nursing. The Department has also alleged that Feeley’s home, where Michael has lived for his entire life, is unsafe for him because it contains stacks of newspapers and magazines in the hallways and other rooms, including the kitchen.
But Feeley denies that her home is unsafe, and her attorney, Stephen Sheehy, contended that the clutter issue is a “red herring.” Sheehy maintained that the issue is not germane because Feeley herself is seeking a suitable residential placement for her son, outside of her home. He added that DDS has failed to provide a clinical document, justifying its decision not to provide a setting for Michael with 24-hour nursing care on site.
Moreover, Sheehy noted, DDS last year informed Feeley that Michael was not entitled to a DDS care plan, known as an Individual Support Plan (ISP), which would specify nursing services for him, because he was not receiving any services from the Department.
Asked if he had any idea why DDS would seek to remove Feeley as her son’s guardian, given that her son is not currently served by DDS, Sheehy responded, “I don’t know. That’s one of many bizarre things about DDS’s involvement in this case.”
DDS contends that it first raised the issue of clutter in 2008 when an assistant DDS area director visited Feeley’s home. However, the Department did not act at that time to remove Feeley as her son’s guardian. Michael has lived at home for an additional five years since then. Feeley says that no one at DDS ever mentioned the issue of clutter in her home to her until last summer. In addition, DDS Commissioner Elin Howe stated in a letter to Feeley in 2011 that “it appears that Michael is doing well in his day program [which is not a DDS program] and living at home.”
In an affidavit attached to the DDS petition to remove Feeley as guardian, Alfred Nazzaro, director of the DDS Lowell Area Office, maintained that DDS “first tried to notify the Public Health authority (building inspector) [about the alleged clutter] but was unable to get any official to publicly confirm the danger, and on information and belief, Mrs. Feeley continued to deny both Department and Public Health officials access to her home.” Nazzaro’s affidavit did not state when the building inspector was contacted.
Feeley contends that no local health officials ever contacted her, and that she never denied anyone entrance to her home.
Also, while DDS depicts Feeley as being unreasonable in her alleged rejections of their proposed placements for Michael, court documents show that in at least one case, Feeley had accepted a proposed placement in writing, but that DDS later changed the terms of a verbal agreement with Feeley concerning nursing services that would be made available at the facility.
Nazzaro’s affidavit stated that Feeley had written him in early June 2009, accepting an offered placement at the Hogan Regional Center for Michael, and had urged that it be done as soon as possible, based on the availability of on-site nursing there. Her letter added that she had “finally found contentment for the first time since arranging for Michael’s future.” But, as the affidavit stated, it was DDS that subsequently changed the offer, in a meeting on June 30, when “it was determined that Michael did not need 24-hour nursing services.” Nazzaro’s affidavit stated that, “Once Mrs. Feeley was informed that 24/7 nursing services would not be recommended…Mrs. Feeley rejected placement at Hogan.”
Feeley denies that she actually rejected the Hogan placement at that point. In fact, she contends she was never told 24/7 nursing services would not be recommended at Hogan, and asserts that in a meeting which occurred months later, no one voiced disagreement with Michael’s diabetes treatment plan.
In a motion filed to dismiss the DDS petition, Sheehy also alleged several irregularities in the Department’s filing, including the lack of a signature of a human being on the petition document. On the signature line of the petition, which states that the document is signed under the penalties of perjury, someone had written only “Department of Developmental Services.”
“I don’t know who’s accusing me,” Feeley maintained.
Sheehy’s motion to dismiss stated that an entity such as DDS “can’t execute a document under the penalties of perjury, because such penalties can only attach to a human being…”
you read something, such as this, that sets a new standard for “just how low can you go”.
I’m still trying to figure out what right DDS has to even bring such an action particularly when the Department isn’t providing any services to the Feeley’s and the Commissioner herself says that Michael is well cared for and doing well in his day program.
Clutter!!!! Seriously!!!!! If it wasn’t so despicable it would be laughable.
Good luck tomorrow Pat and Atty Sheehy. I’m keeping my fingers crossed that you come across a judge that has just a hint of common sense and throws the entire case out of court.
Do I understand this correctly? The Department of Developmental Services is seeking to remove guardianship from a mother whose son is not even being served by the Department?
The alleged “clutter” does sound like a red herring. But if, in fact, there are stacks of periodicals that constitute a hazard, and if Patricia Feeley were to remove them and herself invite a visit by the Public Health inspector, what would then be the Department’s response? It appears that the real issue is the dispute over whether or not Michael requires fulltime nursing care.
We at Advocacy Network were involved not long ago in a somewhat similar situation in which the mother had been removed as guardian of her son, who was being served by DDS through an attorney guardian. These conflicts are heart-wrenching. The biological mother of a mentally handicapped child, a woman who has also most certainly borne more than her share of guilt, anxiety, financial expense, physical and emotional fatigue, is considered for one reason or another unfit to care for her own offspring. So she is replaced by a court-appointed guardian—potentially in the Feeley case a lawyer who had not even previously met her handicapped son.
Each situation of this type is, of course, unique. But they share common elements and raise questions that need to be answered.
How is an attorney selected as guardian? Is there a pool of lawyers in waiting? What qualifications, beyond a law degree, are required? What is their incentive or motivation to become guardian? Is it thrust upon them? Is it altruism? Is it financial? What is their compensation? Where does it come from? Is there a limit to the number of guardianships a given attorney can have? What are their responsibilities? How often do they have direct contact with their wards, required or voluntary? Once appointed, who keeps tabs on the attorneys to see that they are performing responsibly, or any better than the biological parent?
It would be enlightening to hear DDS answer these questions.
Ed Orzechowski
President, Advocacy Network
DDS is alleging in this particular case that Michael faces an unsafe situation in his own home because the rooms are cluttered with magazines and newspapers. But what will happen to Michael if the probate judge accepts DDS’s petition and orders him removed from his home and placed in a group residence without continuous on-site nursing care?
If DDS is so concerned about Michael’s safety, why do they want to place him in a residence where his risk of a hypoglycemic episode due to his unpredictable diabetes condition will certainly be higher than it is in his home? There are reportedly no nurses on-site at night in the residence proposed by DDS. If Michael’s blood glucose happens to spike at night for no apparent reason, as the Children’s Hospital doctor described it, chances are no one will even be aware of it. At best, someone would call 911 and Michael would be taken to a hospital. There is nothing in the court record to indicate any concern by DDS about that potential situation.
As Stephen Sheehy, Pat Feeley’s attorney, noted to me, there is a lot less available nursing in the DDS group home system than the Department would like people to think exists.
here is what is DDS’ real motivation. Obviously they don’t want to provide him with the medical care he requires (access to 24 hour nursing).
for possible unethical conduct of DDS employees who routinely disregard the law and now apparently disregard medical needs as well, in addition to DDS lawyers trying to practice disciplines requiring a license, even though they do not have the license.
If they can wrongfully seize guardianship, they don’t have to be accountable for their past conduct, and then they would be in a position to dictate what services this person would get. And he’s apparently been on the waiting list for 5 years.
Why would this man NOT have access to 24 hour nursing at the Hogan Regional Center? Hogan is an ICF/MR and part of that care model is the availability of nursing services on the campus 24 hours a day. Where exactly was the offered placement at Hogan that a nurse would not be available?
The real question may be whether Pat Feeley was ever actually offered a placement at Hogan. She said that after accepting what she thought was the placement offer, she was never told that the nursing services would not be 24 hours a day. Thus, she said, she never rejected the placement, but was never contacted to move Michael there.
to violating federal law in writing?
dave will keep up posted on this case.
I spoke to Pat Feeley and to her attorney today, following yesterday’s pre-trial conference in Probate Court.
From what I understand, the judge made it clear to the DDS attorney that the Department hasn’t yet met its burden of proof to show either that Feeley has been unreasonable or irresponsible, or that anything short of 24/7 nursing care meets Michael’s medical needs.
Steve Sheehy said at the end of our conversation that he hopes the case is “heading toward a reasonable meeting of the minds” on the proper placement for Michael. The judge scheduled a further conference in the case for July 17.
It does appear that even DDS is dropping the “clutter” argument from its case, apparently recognizing its total irrelevance.
for the update!
is what is happening here. They seem to have strayed way beyond their mission. If I’m wrong, someone will let me know…I thought so.
agree with you more!!!!!