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VOR Weekly E-Mail Update
March 28, 2008
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TABLE OF CONTENTS
Focus on MASSACHUSETTS
1. State files Fernald appeal
2. Developmentally disabled nursing home residents are facing
transfer
3. COFAR editorial: The Numbers Game Hurts Us All
4. From COFAR - The Top 25: Fernald Number Errors
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1. State files Fernald appeal
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Summary:
In August 2008, Federal Judge Tauro barred officials at
Fernald from moving any residents unless they and their
guardians agreed. Governor Deval L. Patrick, like Governor Mitt
Romney before him, wants to close Fernald and move residents to
group homes. The Patrick administration’s appellate brief was
just filed with the US Court of Appeals for the First Circuit.
The families (plaintiffs/appellees) have 30 days to reply. VOR,
and its statewide affiliate, COFAR, are seeking to participate
as Amicus Curiae in the appeal.
State files Fernald appeal
By Richard Conn
Daily News staff
Mar 20, 2008
WALTHAM —
The state yesterday filed an appeal brief of a federal
judge's ruling that residents who want to stay at the Fernald
Developmental Center must be given that chance.
U.S. District Judge Joseph Tauro ruled in August that Fernald
must remain an option for its current residents. He said last
month though that his ruling was not intended to interfere with
the state's plan to close Fernald.
However, the state's appeal, which was filed in the U.S Court of
Appeals, argues that Tauro's order does just that.
"Contrary to the court's disclaimer, the August order
effectively constituted an unlawful command that the (Fernald
Developmental Center) remain open," the state argues in its
appeal.
The state originally announced plans to close Fernald in 2003,
and said doing so would be in line with a national shift away
from institutional care to community living for the
developmentally disabled.
The state's appeal argues that for the Department of Mental
Retardation to comply with Tauro's order, Fernald would have to
be kept open as a placement option for each resident
"indefinitely."
A group of guardians known as the Fernald League has waged a
legal battle to keep Fernald open, claiming residents - many of
whom have lived there for some 50 years - should have the right
to stay.
State officials argue the 196-acre campus is too expensive to
keep open. Fernald League members have disputed figures the
state has offered concerning how much it costs to care annually
for a resident at Fernald.
Marilyn Meagher, president of the Fernald League, said late
yesterday she had not had a chance to look at the state's
appeal.
Meagher said the Fernald League has 30 days to file a response.
Tauro ordered the U.S. Attorney's office last month to
investigate whether a 91-year old woman who lived at Fernald for
more than 50 years was moved against her will to a group home in
Bedford.
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2. Developmentally disabled nursing home residents are facing
transfer
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By Richard Conn/Daily News Staff
Daily News Tribune
Mar 20, 2008
WALTHAM — The state has reached a settlement in a class
action lawsuit that will result in the transfer of more than 600
developmentally disabled nursing home residents to community
living facilities.
Waltham-based Arc of Massachusetts - an advocacy group for the
developmentally disabled - served as an organizational plaintiff
in the lawsuit, which was filed in 1998 on behalf of some 700
people with developmental disabilities in nursing homes
throughout the state.
The suit argued that residents were inappropriately confined to
nursing homes and many weren't receiving the "specialized
services" they needed.
Leo Sarkissian, executive director of Arc, said yesterday that
negotiations on the settlement began in earnest last fall.
"By January an agreement was in pretty good shape," Sarkissian
said. According to the terms of the settlement, 640 individuals
will be placed into community care environments, such as group
homes, over a four-period beginning in 2009.
A press release issued yesterday by the state Department of
Mental Retardation said the other nursing home residents have
conditions or personal circumstances that preclude them being
moved to community settings, but they will continue to receive
"active treatment."
Health and Human Services Secretary Judy Ann Bigby said in the
release that the settlement is part of the state's initiative to
shift care for the developmentally disabled to community living.
"This is an important step in moving forward with our Community
First agenda," Bigby said. "It accelerates the process of
community placement for hundreds of individuals over the course
of a four-year period.
"The settlement of this long-standing case from previous
administrations is a collaborative effort between state
agencies, the Attorney General and the plaintiffs."
A previous settlement in the case was reached in 1999, which
resulted in about 800 individuals placed into community
facilities between 2000 and 2007.
However, negotiations between the two sides stalled over the
"quality of specialized services" that residents who remained in
the nursing facilities were receiving, Sarkissian said.
U.S. District Court Chief Magistrate Judge Kenneth P. Neiman
ruled last April that the Department of Mental Retardation had
not provided nursing facility residents with adequate care. He
ordered the parties to select a court monitor to review the
services provided to those residents.
Sarkissian said the settlement showed that state officials are
committing to provide those with mental retardation and other
developmental disabilities with community care options.
"What we're pleading with the Legislature and the governor to do
is make an even larger investment in community services,"
Sarkissian said.
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3. COFAR editorial: The Numbers Game Hurts Us All
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Summary:
This editorial and the article that follows appeared in the
Massachusetts Coalition of Friends and Advocates for the
Retarded (COFAR) February newsletter. In these articles, COFAR
takes on (very, very effectively) cost myths, including “The
too-high per capita figures for Fernald residents, the too-low
per capita figures for moving those residents into the
community, the apples-oranges comparisons, and the idea that
closing Fernald might help other DMR clients.” As many VOR
members know, in 2003, VOR helped coordinate a cost comparison
study that is still used today by advocates to debunk the
“community is always cheaper” myth. Original reprints of this
cost study are available. Contact Tamie at Tamie327@hotmail.com
for more information.
The COFAR Voice
Vol. 10, Number 1
February 2008
http://www.cofar.org/COFARNL021508.pdf
2007 was the year that the 25-year-old argument about the best
settings for care for people with severe and profound mental
retardation/developmental disability turned into a numbers game.
Despite last year’s alluring (if false) financial case made by
DMR and exaggerated by advocates for closing all facilities (See
“The Top 20 Fernald Number Errors,” page 3 [below] federal and
state courts upheld the longstanding rights of our loved ones to
appropriate and stabile treatment and family choice.
But the discouraging reality is that everyone with MR/DD and all
of our families will pay for the numbers games of 2007.
First, the debate over per capita costs is a setback on what all
our loved ones and families, on all sides, have been fighting
all our lives: to make the world see that people with mental
retardation are people, not numbers. That, as one guardian put
it, “My sister is not just a piece for them to move around on a
game board.”
Second, as is usually attributed to Mark Twain, “A lie can
travel halfway around the world before the truth gets its boots
on.” What many uninterested voters and legislators will remember
is that “the Department of Mental Retardation spends $259,000 a
year on every single person with mental retardation.” That
delusion will make it harder for any disabled person to get
help.
Third, advocates for people with MR/DD enter the state budget
season with our divisions fully exposed. Many of us have been
mislead to believe that closing down one level of treatment will
fund help for others. Articles in this issue will show what’s
wrong in that dangerous assumption. The painful truth is that
these services are underfunded at all levels, even relative to
nearby states.
The gatekeepers have us fighting each other at the gates, when a
united effort would open those gates.
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4. From COFAR - The Top 25: Fernald Number Errors
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COFAR borrowed striking TV writers for David Letterman to
put the Fernald part of the numbers game into a Top-10 list.
They needed 25 items just to cover the four basic
“inexactitudes:” The too-high per capita figures for Fernald
residents, the too-low per capita figures for moving those
residents into the community, the apples-oranges comparisons,
and the idea that closing Fernald might help other DMR clients.
25. DMR in a May 31, 2007 court filing set the per capita cost
of keeping someone at Fernald at $259,000 versus a community
cost of $102,000. In a September press release, the per capita
cost had declined to $239,000. Did the state save $4
million/year ($20,000 per resident times about 200 residents) at
Fernald in less than four months? Nope. Did they apologize for
telling the court the wrong number? Nope. They just changed
their estimates.
24. Estimates? That’s right. DMR doesn’t actually keep track of
what it spends, person by person. They have not revealed the
basis of the $259,000 number, but it is probably a projection of
estimates made in 2001.
23. They based their $239,000 estimate on projected FY2008
expenditures, minus estimated “attrition,” using the 181
resident census of the first quarter of that year. Nine budget
components were estimated, with five of them estimated to
increase. The largest item was payroll, which was estimated to
increase by 8%, despite a note to the same line of the
spreadsheet, “as FDC payroll decreases, the savings are
redirected to the community system…” The payroll number either
increases or decreases. It can’t do both.
22. DMR per capita estimates are based on the number of
residents at Fernald, which population continues to decline
because of DMR’s efforts to move people out, as well as natural
deaths. So by last fall, the population was down to 181. Not
only does the declining population make the costs per person
look higher without actually increasing the bill – it is
probably a wasteful inefficiency.
21. DMR persistently includes the budget for the Marquardt
Nursing Center, but does not add the 29 patients there to the
Fernald census, because DMR does not want to close Marquardt.
Adding the Marquardt patients would bring their current estimate
down to 206,000 per resident per year.
20. The Fernald League looked at the DMR spreadsheet, added back
the Marquardt patients, and divided some expenses that serve 265
homeless people sheltered there, and calculated the Fernald
resident per-capita number at $195,421.
19. But, that still includes the building upkeep for Tufts
Dental, the DMR regional offices, the Howe library, the athletic
facilities, and community work programs, which are used more by
people living in the community than by Fernald residents. And
the state does not intend to close Tufts Dental or the regional
office, and plans to convert at least four other buildings into
state-operated groups homes. So some of those costs should not
be in any calculation about savings of closing Fernald, and the
some of the rest should be moved over to the community-placement
number, and subtracted from the Fernald resident cost.
18. Nearly three-fourths of the buildings on the Fernald campus
are unoccupied, but still using heat and electricity. The state
could mothball these buildings properly and reduce the cost per
patient even more.
17. The COFAR Voice has not seen a full Fernald budget to audit
it. The last time we looked, it included the $91,900 salary of
the facility director, who spent 40% of her time at the Hogan
Regional Development Center – in Danvers! This month, she is now
full-time at Fernald, but what other non-Fernald items have been
padded onto the Fernald budget?
16. Mandatory overtime (see “DMR’s Millions for Mandatory
Overtime,” page 5) is considered to be especially prevalent at
Fernald due to unannounced hiring freezes and the state’s
intention to close the facility. With some people making more in
overtime than in base salary, this inefficiency also adds
unnecessarily to the cost of Fernald residency.
15. Moving on to the $102,000 figure for per-resident care in
the community, it too is an estimate. The estimate is based on a
basket of DMR-only costs for community residential clients now.
This however ignores other tax-supported benefits for
community-system residents which Fernald residents do not use,
such as food stamps, HUD Section 8 housing subsides, Department
of Transportation subsidies, as well as dental and medical
services provided at facilities (and therefore included in the
budget of Fernald!)
14. When a DMR panel made an actual study of 71 of the 142
individuals who had left ICFs/MR in FY 1998 and 1999, their
estimate for FY2002 was that the average annual per person
community cost was $134,247. This study is no longer quoted.
13. The 1998-1999 transfers were younger and healthier and less
profoundly retarded than the remaining residents at Fernald are
today, so that figure would be even higher comparing people at
the same level of disability. But using that FY2002 figure and
the 3% inflation projected by the DMR panel that did the study,
the figure for FY08 would be $160,298 per person going from a
facility to the community.
12. Another working group of the same 2001 commission report
estimated a scenario for closing all the facilities, projecting
an FY2008 operating cost of $151 million for 868 surviving
consumers entirely in the community. That would work out to
$173,963 per person. (The Commission had several working groups
that didn’t work together so carefully.)
11. No average of costs for community residents (of whom most
are mildly or moderately retarded), will work for Fernald
transfers (who are mostly seriously or profoundly retarded and
medically and behaviorally complicated). These fragile and aging
residents will require more costly care in any setting: home,
community, or facility.
10. Residents leaving Fernald will have a right to choose
another IFC/MR. That is part of the 1993 Ricci court settlement,
and was affirmed by HHS Secretary Bigby last September. Of the
residents who transferred out under the pressure of the closing
notice in 2003-4, 60 percent went to another facility, and many
of the rest went to state-operated group homes. So the
comparison of per-resident costs with those at private group
homes is mostly irrelevant.
9. By definition, anyone going from a Massachusetts facility to
a community placement receives a lower standard of care because
only the six developmental centers meet the federal standard as
IFC/MRs. Moreover, Fernald residents under the court settlement
have a right to “equal or better treatment.” Last August 14,
Judge Tauro upheld that Fernald must be an option in their
annual treatment reviews, supporting the idea that a long-term
home with familiar staff often cannot be equaled even at another
facility.
8. Even if DMR’s per-capita cost figures were real, and every
remaining Fernald resident chose to move to the $102,000
setting, the $137,000 difference times the 181 residents would
be $24,797,000. Divide that by the 32,000 other DMR clients and
it would provide les than $2.13 per day in additional services
for each DMR client.
7. At the still-iffy estimate of the Fernald League’s $195,421
number minus the inflation-adjusted actual costs from the
1998-1999 transfers, the “savings” of closing Fernald might be
less than $6.4 million per year. That would be $200 per year,
less than one dollar per day, for each DMR client.
6. In fact, when the closure was first “announced” in 2003, DMR
suggested that savings would be less than $2.4 million per year,
and that the real motivation for closing Fernald was the
superiority of the community system for these individuals. Only
when court monitor US Attorney Michael Sullivan reported an
increased danger of abuse and neglect in private non-profit
group homes, did DMR and advocates of closing all facilities
blanket the media with erroneous cost claims.
5. The four state-operated group homes built to take up Fernald
residents cost an estimated $250,000/bed to build, and are on
20-year leases for $100,000 per year. (Details of this are still
held secret by DMR.) Adding 181 Fernald residents to an already
full community system would probably cost the state more than it
is paying now.
4. Given federal Medicaid cuts, state revenue shortfalls, and
the likelihood of a coming recession, there is no guarantee that
any savings generated by closing Fernald would stay in the DMR
budget.
3. There is no law requiring any proceeds of selling the Fernald
campus to be use for the benefit of people with MR.
2. DMR has persistently refused to look at proposals for
downsizing Fernald, making it more efficient, and enhancing its
additional functions as a nursing care center, community
resource center, and respite center. (Massachusetts DMR has no
respite capacity outside the six developmental centers.) Their
argument is that this would require new investment. But a plan
to sell most of the campus might finance the new investment, and
unite all advocates.
And now…
The Number One Fernald Numbers Error:
1. Advocates of closing the facility have been repeatedly
quoted about how their loved one in a community setting is being
denied vital services because of the expense of Fernald.
Few other advocacy groups are so badly split on severity of
diagnosis and age. Mental health advocates do not argue that the
people with schizophrenia are soaking up resources that could
help the people with bipolar disorder. The AARP does not blame
the people in their 90s for getting more benefits than the
people who retire at 62.
So why do some family members of people with MR/DD believe that
the residents of the Fernald Development Center are holding back
their own loved ones? Even though the numbers don’t work and
can’t be made to work?
Because we are all in pain that cannot be measured by numbers.
Because we are all angry. And our pain and our anger are not
errors.
Seeing the residents of Fernald, their families and guardians,
as the obstacle to reforming an underfunded, undersized,
under-regulated, and under-supervised DMR community residential
system is the Number One Fernald numbers error.
Forcing another 181 Fernald residents into that system would be
dangerous to them and no benefit to those now using the
community residential system, or the thousands waiting to get
into it.
(Special thanks to The Fernald League for DMR documents obtained
under the Freedom of Information Act.)
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Tamie Hopp
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