DDS expands privatized services despite family preference for state care

[Cross-posted from The COFAR Blog]

Patricia Murphy had to file a federal lawsuit in order to get her intellectually disabled sister out of a corporate, provider-operated group home, where she says she was subjected to abuse and inadequate care, and into a state-operated group home.

Murphy’s case illustrates how difficult the Department of Developmental Services has made it for people either waiting for services or receiving inadequate services in privatized group homes to obtain state-run residential placements in Massachusetts.   DDS funds group homes run by both corporate providers and by DDS staff.

At the same time, people living in state-run developmental centers have been given priority in finding state-operated group home placements when the developmental centers have been closed.

Here are some facts to consider:

• More than 87 percent of the 372 people who have been transferred since 2008 from four developmental centers marked by the administration for closure have gone either to state-operated group homes or to two remaining developmental centers (primarily to the Wrentham Developmental Center). Only 47 people — less than 13 percent of the total — were transferred to corporate, provider-run group homes.  This, to us, indicates, a strong preference among families and guardians for state-run care.
• As a result of this apparent preference, DDS has built 49 new state-operated group homes since 2008.  But it has closed 28 such residences during that same period, resulting in a net increase in state-operated residences of only 21.
• There are apparently vacancies in state-operated group homes.  DDS figures show that nearly all of the 99 residents living in the 28 residences that have been closed were moved to other state-operated residences.
• Yet, DDS is placing a priority on boosting funding and resources not to state-operated care, but to corporate providers, and has either cut funding for state-run care or provided more modest increases for it.  The governor’s proposed Fiscal Year 2015 budget would result in an increase in the provider residential line item of almost 17 percent in inflation-adjusted terms, more than double his proposed 6.5 percent increase in the state-operated residential line item.

The new state-operated group homes built since 2008 appear to have been intended to accommodate only the residents transferred from the developmental centers.  They have apparently not been made available for virtually anyone else. DDS is not only not building new state-operated facilities for persons other than former developmental center residents, it is apparently not letting people other than developmental center residents even know about the existence of state-operated residential care options.

Thousands of disabled individuals are reportedly waiting for residential services in Massachusetts, although the state does not maintain an official waiting list that would publicly identify the number of people of waiting.  Others, such as Patricia Murphy, are apparently trying unsuccessfully to move family members or wards in the DDS system from provider-operated to state-operated care.

The administration’s policies of under-funding state-operated care,  closing existing state-operated group homes, and preventing people from choosing state-operated care as a residential option are combining to reduce the availability of high-quality care throughout the DDS system.  Direct-care workers in state-operated group homes have better training and benefits than workers in the provider-operated system.  That’s why families from the closing developmental centers have chosen state-run facilities for their loved ones.  But the administration appears to be more interested in promoting a privatized, provider-run system than in placing people in settings offering the best care.

According to information from DDS, 157 new provider-run homes have been built since 2008, bringing the number of such homes to more than 1,800 in Massachusetts.  In contrast there are just 261 state-operated group homes in the commonwealth and only two fully functioning developmental centers that are not currently targeted for closure.

DDS has stated that it is currently projecting to build five new state-operated group homes, but it is also projecting to close six of them.  Our question is why.  Why build new state-operated homes and at the same time close existing homes, and moreover, why close these homes while people are waiting for residential placements?

Patricia Murphy’s lawsuit, which was filed last year, alleges that DDS routinely fails to disclose the existence of state-run homes and developmental centers to individuals applying for DDS care, and portrays corporate, provider-run homes as the only option for them.  The plaintiff in the case, Kathleen Murphy, is severely intellectually disabled, and was a resident of a group home operated by a corporate provider to DDS.  (Disclosure: Kathleen Murphy is represented by Thomas Frain, an attorney who is president of COFAR’s Board of Directors.)

“We had been asking DDS since 2006 to get her (Kathleen) into a state-operated group home, and they wouldn’t do it,” Patricia Murphy says.  The federal complaint maintains that Kathleen Murphy suffered severe psychological harm and a risk of death in provider-run group homes.  She was finally moved to a state-operated group home in February, but only after the lawsuit was filed.

According to the complaint, Kathleen was over-medicated in a provider-run residence with Depakote and Risperdal, drugs for bipolar disorder; however, that diagnosis of bipolar disorder later turned out to be mistaken.  The suit alleges that DDS’s failure to move Murphy to a state-run facility coupled with its failure to provide people waiting for DDS care with the option of state-run residential care violate federal laws.  Those laws include the Home and Community Based waiver of the Medicaid Law (42 U.S.C., Section 1396), which requires that intellectually disabled individuals and their guardians be informed of the available “feasible alternatives”  for care. In addition, the complaint alleges that the state is violating the federal Rehabilitation Act (29 U.S.C.,  Section 794), which states that no disabled person may be excluded or denied benefits from any program receiving federal funding.

DDS’s projected number of transfers to provider residences didn’t materialize

In 2009, DDS projected that a substantial number of former developmental center residents would choose provider-run residential care.  In its Community Services Expansion and Facilities Restructuring Plan in 2009, DDS projected that slightly more than half of a then estimated total of 402 developmental center residents would be transferred to provider-run group homes.  In other words, DDS was projecting a major increase in the number of clients living in provider-run residences — a situation that would result in millions of dollars of additional state revenue to the providers.

As it turned out, the 47 former developmental center residents who actually transferred to provider-run residences was 77 percent fewer than the 206 that DDS had projected.  The number of residents who actually transferred to state-operated group homes (156) was 39 percent higher than what DDS projected in 2009, and the number that transferred to other developmental centers (169) was more than double what DDS originally projected.

In actuality, things didn’t work out the way DDS and the providers had projected or apparently hoped.  Possibly for that reason, it would appear that DDS is continuing to try to maximize the providers’ revenue and business opportunities at the expense of adequate and appropriate care and services for the vulnerable people in the Department’s care.  DDS needs to rethink its policies in this regard.  At the very least, DDS should let people seeking residential care know about existing vacancies in state-operated group homes.  That is after all the law.