(Cross-posted from The COFAR Blog)
More than a year after an important family rights bill (H. 1459) for persons with developmental disabilities was sent to the Legislature’s Judiciary Committee, the committee co-chairs have decided it’s time to study the measure.
Yes, we understand that as of yesterday, three days before the Thursday drop-dead date for bills that have not been voted on in committees in the current legislative session, Senator William Brownsberger and Representative John Fernandes ordered H. 1459 sent to yet another legislative study.
Of course, we know what a study really means in Massachusetts Legislature-speak. It’s a euphemism for a legislative graveyard, or to use another metaphor, a legislative black hole from which nothing ever emerges. No study will ever be done on H. 1459. It will have to be refiled as a new bill next year if it is ever to see the light of day again.
Since the bill is only technically still alive, but is in actuality dead, I think we can refer to it in the past tense. The bill proposed that a spouse or parent be presumed in probate court to be the proper person to be a guardian of a developmentally disabled or otherwise incapacitated person unless competent evidence is introduced to the contrary.
We consider H. 1459 to have been a critically important rights measure for family members of people with disabilities — particularly developmental disabilities — who are routinely overruled in decisions about the care of their loved ones in probate court proceedings by medical and clinical “experts,” state agencies, probate court judges, and service providers.
In many of those cases, developmentally disabled people are viewed as valuable funding sources, particularly by privatized group home providers who get billions of dollars in taxpayer money to provide those people with residential services. That is why the Department of Developmental Services, which is intent on further privatization of its services, is particularly eager to get attorneys and corporate providers appointed in probate court as guardians. Those non-family guardians are much more likely than are family members to cooperate with DDS’s privatization agenda.
- State Sen. William Brownsberger (left) and Rep. John Fernandes (center), co-chairs of the Judiciary Committee, confer with a legislative aide during a committee hearing in June 2015 on H. 1459 and related bills. It now appears they were probably discussing their legislative “black hole” strategy for many of those bills.
If Brownsberger and Fernandes and other members of the Legislature really cared about the issues that H. 1459 is concerned with, they would have acted on the bill by now. In fact, they had 17 years to study it, including the entire year and two months that the bill sat in the Judiciary Committee in the current session with no action on it. This bill has been repeatedly filed since 1999, and we know it has been sent to similar “studies” in past legislative sessions. But apparently, no one has learned a thing about the bill in those past studies, and we’re sure that will be the case yet again.
As we reported last month, this legislative session initially appeared to be different with regard to H. 1459. While COFAR has long supported the measure, it garnered the support last year for the first time of other major advocacy organizations for the developmentally disabled, including the Massachusetts Developmental Disabilities Council, which is technically part of the Baker administration. The MDDC listed H. 1459 as one of its legislative priorities for 2015-2016.
The Judiciary Committee did hold a public hearing on H. 1459 last June. COFAR, the MDDC and other organizations submitted testimony in support of the measure. As far as we know, the bill was not controversial, and no one raised any opposition to it at the hearing.
But the months dragged on and the Judiciary Committee did nothing about the bill. In January, State Sen. Richard Ross and Rep. David Linsky sent a letter to Brownsberger and Fernandes, urging them to finally pass the bill and saying it had their full support. Their letter noted that in light of continuing budget cuts to service coordinators in the DDS system, “family guardians are particularly crucial in managing their child’s transition and medical decisions.” But the letter apparently had no effect.
Ross and Linsky are the local legislators of Stan McDonald, who has been fighting unsuccessfully against DDS for years to gain guardianship of his developmentally disabled son, Andy. It is Linsky who has repeatedly filed the guardianship bill since 1999 on behalf of McDonald and an unknown number of other people who are in similar positions.
We may never find out the real reason that the guardianship bill can never get through the legislative process. But it’s my guess that DDS, for reasons discussed above, does not like the legislation. And experience has taught us that legislators on Beacon Hill rarely, if ever, challenge the authority of agencies like DDS or their lobbyists and corporate providers.
Is there a way around these two stumbling blocks? What is their motivation for doing this? Is there a way to beat them or work around them?
How do you get around that? I think you may have some ideas about that, jc!
Pretty sure sending it “to study” requires a committee vote. (Actually, jconway, isn’t Brownsberger your Senator?)
That’s when North Cambridge got redistricted into Pat Jehlen’s district. My parents current Senator is Jason Lewis and mine is Joan Lovely, just moved to Salem two weeks back and will be registering there.
Will’s a nice guy, though he’s always had an odd conservative streak on some issues. He’s an ardent drug warrior and was in favor of the Keystone pipeline and Citizens United. He definitely seems to be an obstructionist on this issue.
Isn’t it just about always the case that where there is incapacity the next of kin has first dibs on power of attorney, or when it is a child the parents are responsible UNLESS circumstances specifically warrant another arrangement? What surprises me is that the courts don’t operate on those assumptions.
but it also says that probate judges can overrule that priority for any reason — something they frequently do. H. 1459 would have made it a rebuttable presumption that parents are the proper persons to be guardians, which would have shifted the burden of proof on that. It would also have removed the provision that judges could ignore the priority given parents.
I am politely asking you to speak against your own interest. Can you give us the strongest argument that your opposition makes, with no spin on the first cycle. Then, please give us your response to your opposition. No snark here; I am genuinely curious about the issue.
or even if there is any opposition. As the post notes, we haven’t heard of any objections that have been raised by anyone regarding this bill. So, it’s a mystery to us as to why the bill never gets through the legislative process and why the legislative leadership always decides they have to send the bill to a study.
I know Brownsberger very well yet would not recognize Fernandes if I were sitting next to him. Brownsberger is nothing like jconway’s thumbnail sketch of him.
Find a COFAR member in his district and ask him/her to set up a three way meeting with Brownsberger, your COFAR member and yourself. He might talk straight with you, or at least let you know what/who is the opposition. Will listens closely to people and is not afraid of pushing back so you are likely to get important info from him. Make the argument very personal about a family that has been broken by the current system, not an abstraction. Start calling the bill by the human name of a harmed family, like “Dave from HVad’s” bill.
The rules of the House, the Senate and the Joint Rules require that committees of primary jurisdiction issue a final resolution on all 8000+ bills filed annually, either Ought To Pass (OTP), Ought Not To Pass (ONTP) or send them “to study.” Ninety percent plus are sent to study, yet there is no such thing as study. At most, the committee will field phone calls or meetings with lobbyists and the truly persistent citizen advocate when there is a nexus with the committee chair’s broad personal and institutional interests. Be that persistent advocate with a Brownsberger constituent.
n/t
I just don’t get it. Why are parents and/or other family members not considered primary guardians? Because their child/relative is developmentally disabled? Some judge or attorney knows the individual better than family? If I have two children, one normal, and one developmentally disabled, I’m a fit guardian for the first, but not the second? Where’s the logic?