Author:

1. Why is this bill so important to the disability community? 

One of the largest consumer law problems affecting people with physical disabilities is wheelchair repair. It is commonplace to be left stranded or isolated in one’s home for weeks, awaiting repairs to wheelchairs under warranty and unable to get to work, school, medical appointments, the grocery store, and other places in the community.

Such durable medical equipment devices are highly specialized, each with their own branded parts, and are sometimes prone to defects and sudden failure.  The retail market for wheelchairs has become increasingly concentrated, with a very small number of vendors/distributors controlling the entire marketplace.  With competition declining due to market forces, the industry has less economic pressure to provide consumers with disabilities with responsive customer service.  Many providers also maintain a low volume of inventory and often do not regularly communicate with consumers about the status of parts that must be ordered.

Wheelchair users need the legislature to level the playing field between providers and consumers, shorten repair wait times, and ensure that those who use wheelchairs are treated with dignity and respect.[1]

2. What is wrong with the current law? 

• The current repair/lemon law does not adequately protect wheelchair users who are stranded with broken wheelchairs under warranty. For example, in those circumstances, it does not create any timelines for assessing repairs or require dealers to offer loaner wheelchairs within a fixed period of time.
• The current law only provides protection for consumers who pay out of pocket for their wheelchairs. This excludes, for example, protection for MassHealth consumers.
• MA law is significantly weaker than the wheelchair warranty laws in other states.
• The restrictive provisions for invoking warranty protection have shifted repair costs onto public payors and private insurers, increasing financial burdens on those systems and forcing consumers to work with prior approval and medical paperwork requirements associated with those payors.
• The law has been ineffective in incentivizing manufacturers and providers to provide reasonable levels of customer service and has failed to provide consumers with usable remedies to secure repairs or recover their own expenses.

3. What is the most serious problem this bill is intended to fix? When wheelchairs are immobile or cannot be used safely, the consumer is stranded and left unable to get to work, school, medical appointments, food shopping, or anywhere else outside of the home. This creates a crisis for that individual and sometimes also for family members. It also has severe implications for the health of wheelchair users who may be subject to pressure ulcers, blood clots, pneumonia, loss of physical function and depression from being confined in bed for prolonged periods.[2] 

When this occurs for no reason attributable to the wrongful acts of the consumer, the manufacturer and dealer should stand behind their product.

 Under these circumstances, for wheelchairs under warranty, providers and manufacturers  should be obligated to assess the wheelchair right away, so that a repair can be done if this is possible, or that parts can be ordered if this is not possible.  Instead, consumer typically wait many days or weeks for their wheelchairs to be assessed.  Currently, the law provides no specific obligation for the provider or manufacturer to respond promptly. 

4. What steps are required under this legislation when consumers are at home stranded? When a wheelchair is both defective and inoperable, S.2567 requires that the manufacturer or dealer must assess the wheelchair within 3 business days following notice from the consumer, and provide a temporary loaner wheelchair within 4 business days. If feasible, they must also provide the consumer a time window no greater than 5 hours for the starting time of the assessment. 

5. Please explain more about loaner wheelchairs. Are those needed or required when a wheelchair breaks down?  Some wheelchair users have their own back-up wheelchair.   Others may not be able to use a loaner wheelchair.  This is partly why it is important that all wheelchairs of stranded consumers be assessed right away and that parts be available and ordered quickly.   For consumers that need and are able to use a loaner chair, the bill would require that a loaner wheelchair be furnished within four business days when the wheelchair is inoperable.  The current wheelchair repair law does not obligate the dealer to provide a loaner wheelchair. It just assumes the consumer will shoulder this burden and then attempt to seek the costs of doing so from the dealer, when the law otherwise applies. 

6. Is it reasonable to ask loaner wheelchairs to be provided by the dealer promptly? Massachusetts MassHealth providers are obligated to attempt to supply MassHealth consumers with a loaner, which is comparable in most respects, regardless of the complexity and customization of the wheelchair. 130 CMR sec. 409.420(B) (“The provider must attempt to supply, on a rental basis, properly working substitute equipment that is comparable in most respects to the equipment to be repaired.”).

Similarly, the definition of temporary loaner wheelchair in S. 2567 requires one that is working and able to perform essential functions, but not one that is identical. The concept of requiring a manufacturer to give a loaner wheelchair during repairs is not a new or controversial one. In fact, it is the law in many other jurisdictions, as to both ordinary and CRT manual and power wheelchairs, including Alabama, California, Colorado, Delaware, Hawai’i, Idaho, Iowa, Maine, North Dakota, Ohio, Oregon, Rhode Island and Vermont.

Many of these have response times for providing a loaner wheelchair that are shorter than, or comparable to S. 2567. See, for example, California (when the wheelchair is out of service for 24 hours); Colorado (if out of service for over one day); Oregon (if threat to safety or if out of service for seven (7) days); Rhode Island (same) and Vermont (two (2) business days, unless “extensive custom retrofit” is required, in which case ten(10) days). Again, the four (4) business day timeline only applies when a wheelchair is inoperable.[3]

7. Do consumers have the right to repair their own wheelchairs? Not currently. This legislation (both current provisions of S. 2567 and amendments being suggested) would allow consumers to make simple repairs on their own or with qualified assistance (tightening or replacing nuts and bolts, fixing tires, etc.).  Such measures should not void the consumer’s warranty.  MassHealth is also currently sponsoring a working group with industry representatives and wheelchair users and advocates to create a mobile response unit of trained community-based workers to assist with simple repairs.

8. Please provide a list of the changes this bill would make.  What does it do?

• Expands the definition of “consumer” in the Customized Wheelchair Lemon Law to include those with full private/public insurance coverage and no out-of-pocket expenses for wheelchairs;
• Sets the minimum warranty length at two years (like our neighboring states of RI and CT), compared to the current one year, and sets the default warranty period to three years if the manufacturer fails to follow these requirements[4];
• Requires manufacturers to publicize notice of these warranty protections to wheelchair consumers (like AZ, DE, and NY). (See also notices for Massachusetts automobile consumers provided in 201 CMR 11.22.)
• Expands the scope of the law to include not only customized wheelchairs, but any wheelchair or other aid that enhances the mobility or positioning of an individual with disability (most states have this type of coverage);
• Expands the definition of “manufacturer” to include dealers with exclusive distribution arrangements with a manufacturer or that are designated by the manufacturer for repairs (like D.C. and VA);
• Requires manufacturers to maintain inventory for all repair and replacement orders for wheelchairs under warranty pursuant to this law, either personally or through subcontractors (similar to the current MassHealth regulations 130 CMR 409.405 (f) and 130 CMR 409.412);
• Provides “lemon law” remedies allowing the return or replacement of the wheelchair when the consumer provides a “reasonable attempt to repair” and the manufacturer or provider still fails to repair the condition. This includes either: 1) two repair attempts with continuing nonconformity (like 16 other states); or 2) twenty-one days out of service with continuing nonconformity, instead of the current rule of four unsuccessful attempts or 30 days out of service);[5]
• Ensures that for the repair of nonconforming wheelchairs, the manufacturer shall provide for the consumer either: (a) a temporary loaner wheelchair; or (b) reimbursement for the cost incurred by the consumer for renting a temporary loaner wheelchair (16 states have some obligation on manufacturers to provide temporary replacement equipment or reimbursement of rental equipment during repairs);
• Provides that when a wheelchair is both defective and inoperable, requiring the manufacturer or an authorized wheelchair dealer to assess the wheelchair within three (3) business days following notice and, if necessary, provide a temporary loaner wheelchair within four (4) business days for the expected duration of repairs provided under the warranty. (States such as CA, CO, OR, RI, and VT all have short or even shorter response times for providing loaner chairs.);
• Expands the “collateral costs” covered for consumers with defective wheelchairs to include shipping costs, transportation costs, out-of-pocket medical expenses (like D.C. AK, IL, IA, and/or OH), as well as lost wages;
• Allows the consumer a reasonable right to repair simple conditions without voiding the warranty;
• Authorizes the Attorney General to bring action under our consumer protection statute [c. 93A] to enforce this law and allows consumers to bring private causes of action under the consumer protection statute, (as is already the case in HI, KS, MD, OH and VT) and makes violations of the law per se “unfair or deceptive acts” (as is the case in MD and KS).
• Requires the Office of Consumer Affairs and Business Regulation to report to the House and Senate Clerks and the Joint Committee on Children, Families, and Persons with Disabilities not later than January 1 of each year on the operational status of the wheelchair alternate arbitration mechanism; and
• Requires the Secretary of the Executive Office of Consumer Affairs and Business Regulation to promulgate regulations as necessary pursuant to this act’s amendments of Chapter 93, section 107 within ninety days of this bill’s passage.

9. What about wheelchair problems caused by abuse and neglect? How is that handled?  Those are excluded from the warranty, both under existing law and under S. 2567. 

10. What about wear and tear? How is that handled? This bill does not change the existing law. Both provide that conditions caused by abuse or neglect by the wheelchair consumer are not covered by the warranty. However, if  the condition substantially impairs the use, value or safety of the wheelchair and is not caused by abuse or neglect, the manufacturer or provider should be required to repair the condition. It is not reasonable to allow the manufacturer to disregard the warranty and simply claim that the part under warranty has “worn out.”

11. How would this bill be enforced? Consumers may use the arbitration mechanism or the consumer protection statute, M.G.L. c. 93A. The existing arbitration process has not been used by any consumer in recent memory, given the deficiencies in the existing statute. 

12. Why doesn’t current law adequately protect consumers? Is this bill fair to the wheelchair industry? 

As a result of Medicare competitive bidding, mergers and acquisitions, and other factors, there has been a radical consolidation within the industry.  There is now almost a “duopoly” of only two national dealers/providers who service MassHealth wheelchair customers in the Commonwealth.  Moreover, practically speaking, that provider may be selected by the rehabilitation facility and not the consumer. This means the free market is working inefficiently, there is little consumer bargaining power and increasingly, very poor customer service. 

In addition to the lack of competition in the marketplace, there are two other causes of low consumer bargaining power.  First, as to warranty protection, there is very little effective regulation.  Low-income consumers lack the resources to enforce the current inadequate warranty provisions or fall outside of their scope.  Despite the very high volume of complaints, we receive about new or relatively new broken wheelchairs, to our knowledge there have been no cases brought to arbitration under the current wheelchair lemon law.  The law does not apply when wheelchairs were paid for by MassHealth and Medicare and the existing consumer protections are sorely inadequate. Second, the demand for wheelchairs is inherently inelastic.  If gas prices increase, some consumers who drive may place downward pressure on prices by taking public transit, sharing rides, walking or biking.  Most wheelchair users have no alternative means of mobility.

The provisions in S. 2567 are largely similar to the wheelchair warranty provisions found in many other states. They are intended to require manufacturers and providers to prioritize the repairs of wheelchair consumers who are stranded in their homes. To incentivize manufacturers and providers to respond quickly, the bill provides that the financial costs of being isolated and immobile should not be borne entirely by the consumer when the repairs are covered by warranty.  In addition, when the manufacturer or provider has been unable to fix the same re-occurring problem within a reasonable period, after multiple attempts, the consumer should be able to use lemon law remedies to secure a replacement or refund.

13. How can I hear firsthand the stories of consumers who have had problems with wheelchair repair, including people stranded at home? The committee hearing may be accessed at https://fb.watch/702k6idhZ4/ (Listen starting at the 2 hr. and 17-minute mark).

14. Are these problems well known? These problems are commonly experienced by wheelchair users, especially people who use power wheelchairs and have been frequently reported in the media.[6] 

15. The wheelchair industry says the problem is the prior approval process and the need for medical documentation. Is that right? Not really.  Repairs that are covered by a warranty are, by definition, not subject to prior approval and medical documentation requirements.

Prior approval is a serious problem for another day, and would require reforms to Medicare and other systems not easily under the control of the Massachusetts legislature.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

 Additional Amendments Recommended for S. 2567:

(see track-changed version)

• Clarify the meaning of “inoperable.”
• Adopt more precise language for the right to repair versus unauthorized misuse in the nonconformity definition and elsewhere in the bill.
• Use more precise definitions of “temporary loaner wheelchair” versus replacement wheelchair;
• Include provision clarifying that warranty continues if provider/manufacturer have not repaired after receiving notice during warranty period.
• Allow for alternative notice of warranty that consumer is able to access (in lieu of “understand”).
• Provide for public payors or insurance companies to be reimbursed if there is a refund.

[1]  In a Disability Law Center (DLC) survey of 85 wheelchair consumers, 36% said their repairs were not done correctly. 45% reported a delayed response time for the vendor and 40% reported having trouble getting status reports from their vendor.

[2] See e.g., literature published by Lynn Worobey, Ph.D. a professor and researcher in the Department of Physical Medicine and Rehabilitation at human engineering research laboratories at the University of Pittsburgh, including Wheelchair Breakdowns Are Associated with Pain, Pressure Injuries, Rehospitalization, and Self-Perceived Health in Full-Time Wheelchair Users With Spinal Cord Injury. Hogaboom NS, Worobey LA, Houlihan BV, Heinemann AW, Boninger ML., Arch Phys Med Rehabil. 2018 Oct; 99(10):1949-1956. According to a 2016 study by Worobey, in just a six month period, 64% of wheelchair users reported needing at least one repair during that period, of which 28% reported having at least one of these “adverse consequences” happen to them during that period, 18% reported getting stranded due to their wheelchair malfunctioning during that period, and 7% reported not being able to have their wheelchair repaired at all. Worobey, Lynn et al., Type and Frequency of Reported Wheelchair Repairs and Related Adverse Consequences Among People With Spinal Cord Injury at 1755, Archives of Physical Medicine & Rehabilitation, American Congress of Rehabilitation Medicine (2016).

[3] Automobile manufacturers and dealers often have loaner provisions that are more generous, even though wheelchairs may cost more than new automobiles, and wheelchair consumers are far more reliant on their devices.  Most likely this is because of a much higher degree of marketplace competition in the automobile industry. Toyota, for example, provides a three year warranty on new cars and provides a loaner vehicle at no charge whenever the automobile cannot be repaired the same day.

[4] Providing for a possible extension of the warranty period encourages dealers to comply with the notice requirement and educate consumers, without the cost of governmental oversight.   It is used in at least one other wheelchair warranty law. In addition, the Massachusetts automobile lemon law requires that the warranty period be tolled entirely when the dealer fails to provide notice of the warranty.  G. L. c. 90, sec. 7N ¼ (4).

[5]  The current Massachusetts automobile lemon law provides for relief after three or more attempts or 15 more days out of service. G.L.c. 90 sec 7N ½.  It is difficult to understand why a higher burden is placed upon wheelchair consumers given the comparable complexity of components in automobiles and the dependence of wheelchair consumers on their wheelchairs in order to leave their homes and go to work, school or elsewhere in the community.

[6]   Examples of media coverage include, https://www.wcvb.com/article/woburn-massachusetts-man-with-cerebral-palsy-has-been-waiting-9-weeks-to-get-his-wheelchair-fixed/36283445#  (April 29, 2021) (Story of Woburn man with cerebral palsy, stranded with a heavy broken motorized wheelchair being pushed by his 77 year old mother for nine (9) weeks, with the problem apparently only resolved after WCVB 5 TV contacted the provider.) and a recent two part series by WBUR, https://www.wbur.org/news/2022/03/10/massachusetts-consumer-protection-wheelchair   and https://www.wbur.org/news/2022/03/09/massachusetts-broken-wheelchair-disability-mobility-explainer

The Disability Law Center (DLC) is pleased to announce Barbara L’Italien as the organization’s new Executive Director. DLC is the Commonwealth’s Protection and Advocacy agency for persons with disabilities.

Barbara has been a leading advocate at the intersection between politics, law, health care and policy for twenty-five years. She served as both a State Representative and State Senator in the Massachusetts Legislature, focusing on the rights and needs of people with disabilities, seniors, people who are economically disadvantaged and the LGBTQ community. Her advocacy concerning Autism built the service delivery system for educational, social-emotional, and medical support and included establishing and chairing the first Autism Commission and passing comprehensive mandated medical insurance coverage. Barbara also chaired the Elder Affairs Committee, fought for community-based services and passed model legislation to address Alzheimer’s care as well as Consumer Protection laws and dyslexia screening. She is proud of her votes for Universal Healthcare and Equal Marriage. Barbara gave up her State Senate seat to run for Congress in 2018 as a Mom on a Mission to fight for Medicare for All. She has been a Government Affairs Director for the Massachusetts State Treasurer and The Arc of Massachusetts. In recent years, she operated a small lobbying firm that facilitated a partnership with the state to achieve an increase in the community-based elder healthcare workforce through the expansion of an employment training program.

During the pandemic, Barbara served for six months as a Supervisor on the Massachusetts Community Tracing Collaborative and as Senior Government Affairs Advisor for Partners in Health. In the latter position, she focused on partnering with other organizations on an equitable COVID-19 response. Barbara is committed to working to address the systemic inequities that COVID-19 has exacerbated – in health care, employment, housing, education and opportunities for civic engagement – grounded in structural racism as well as discrimination based on disability and socioeconomic status.

“I am honored to join the Disability Law Center in continuing to fulfill their mission,” Barbara remarks. “Working in concert with DLC’s dedicated Board and talented Staff, I look forward to building upon the existing coalition work, advocacy efforts, public profile and financial resources of the organization.”

The Disability Law Center (DLC), Boston Center for Independent Living (BCIL), and the Disability Policy Consortium (DPC) are working together on Bill S. 2567 a bill to improve warranty protections for wheelchairs. We are looking for people who are currently experiencing challenges to repairing their wheelchairs, to highlight the issue and the need for this legislation. We are especially interested in stories about delays caused by the wheelchair provider or manufacturer.  If you have experienced delays or other problems in getting wheelchair repairs, please contact Kay S. at BCIL, by email at kschoucair@bostoncil.org or by calling (617) 821 – 4394.  Thank you.

The Disability Law Center, Boston Center for Independent Living (BCIL)  and the American Civil Liberties Union, among others, are leading an effort to allow permanent remote access to public meetings.

The pandemic has taught us that remote access is equal access!

Please send a video—no more than 60 seconds in length— to DLC at rglassman@dlc-ma.org  by April 9 at the latest. We will post them, along with our allies, on April 11.

We are calling on the legislature to do two things related to open meetings:

• Allocate money in the state budget for grants to municipalities that need IT improvements to facilitate remote participation beyond the pandemic.

•  Update the open meeting law so members of the public can choose to participate remotely in public meetings on a permanent basis, even after the pandemic emergency ends

Key messages you might share in your video:

• How you were able to attend public meetings because of remote access.
• How transparent and accessible government means a stronger democracy for all.
• How remote access removes longstanding barriers to participation in civic life for residents with disabilities, seniors, people with limited access to transportation, and people with work and family obligations that otherwise prevent them from spending hours at municipal buildings.

How to record your video (60 seconds or less):

• Hold your cell phone horizontally while recording the video.
• Ensure that the light source is in front of you, rather than behind you.
• Choose a quiet location to avoid background noises, and make sure the mouthpiece/microphone area on your cell phone is unobstructed.

For more information contact Rick Glassman at rglassman@dlc-ma.org

FOR IMMEDIATE RELEASE

March 28, 2022

 Contact:   Tatum A. Pritchard, Interim Executive Director and Director of Litigation

Disability Law Center

617-723-8455

tpritchard@dlc-ma.org

 Disability Law Center Releases Investigation Report Concerning the Experience of Prisoners with Disabilities in Two Department of Correction Facilities

Boston, MA – Today, the Disability Law Center (DLC) issued a public report summarizing its findings and recommendations for corrective action arising out of our investigation of COVID-19-related lockdown conditions, infection control measures, and access to health care at two Department of Correction (DOC) facilities – MCI-Norfolk and MCI-Shirley. DLC initiated the investigation in April 2020.

While recognizing that the challenges DOC faced during the pandemic were unprecedented as well as DOC’s extensive efforts to adapt, DLC ultimately found that DOC’s actions and omissions with respect to two issues constituted neglect of prisoners with disabilities. First, DLC found that DOC failed to institute appropriately intensive infection control measures to protect residents in the MCI-Norfolk Clinical Stabilization Unit from COVID-19 in late 2020, resulting in every one of the 16 elderly and/or medically vulnerable individuals living in the dormitory contracting the virus in December 2020. This failure constituted neglect. Second, DLC found that DOC sanctioned the policy and practice of its contractor, Wellpath, that delayed and strictly limited access to vital health care services for much of 2020 and 2021 and resulted in widespread neglect of DOC prisoners with disabilities.

DLC’s recommendations for corrective action are aimed at ensuring that the failures in meeting the needs of vulnerable incarcerated persons – including those with disabilities, with serious or chronic medical conditions, and of advanced age – identified during the investigation are not replicated during future periods of COVID-19 resurgence, outbreaks of other infectious disease, or institutional events that may lead to restrictions on movement and access to DOC programs and services.

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FOR IMMEDIATE RELEASE

February 9, 2022

 Contact:
Tatum A. Pritchard
Interim Executive Director and Director of Litigation
Disability Law Center
617-723-8455
tpritchard@dlc-ma.org

Disability Law Center Finds Serious Health and Safety Concerns at Bridgewater State Hospital, Confirming Widespread Mold and Improper Use of Restraint

Boston, MA – Today, the Disability Law Center (“DLC”) issued a public report summarizing its findings from its monitoring efforts at Bridgewater State Hospital (BSH) from July 2021 through December 2021. On January 31, 2022, DLC released a private, unredacted version of the report to select government officials, pursuant to its legislative authority to monitor the efficacy of service delivery reforms, physical plant, and continuity of care at BSH.

In the report, DLC highlights concerns regarding harmful levels of mold growth – confirmed once again by DLC’s expert – throughout BSH; illegal chemical and physical restraint and seclusion practices; the pervasive culture of punishment and intimidation; limitations on access to medical care for BSH Persons Served (“PS”); and the lack of programming for PS who are in quarantine, are undergoing initial evaluation, and have intellectual and/or developmental disabilities. In addition, DLC discusses deficiencies in discharge planning and continuity of care, including psychiatric medications, for PS transferred to county correctional facilities.

DLC’s sweeping recommendations include the following:

• DOC must immediately remediate mold and assess for other environmental toxins existing in the BSH physical plant per expert recommendations and industry standards.
• The Commonwealth must commit to closing and constructing a modern facility designed to provide psychiatric evaluations and treatment in a safe, therapeutic environment.
• The Commonwealth must immediately place BSH, as well as the planning, construction, and oversight of the new facility, under the authority of DMH.
• DOC and Wellpath BSH must provide regular health screenings for symptoms of mold and environmental toxin exposure to all PS and staff, provided by a contracted health professional with expertise in the area.
• Wellpath and DOC must immediately cease imposition of chemical restraint, including so-called Emergency Treatment Orders, physical restraint, and seclusion in circumstances that do not meet the narrowly tailored requirements of G.L. c. 123, § 21.
• The Commonwealth must demand that DOC and Wellpath accurately document and report all uses of chemical restraint, physical restraint, and seclusion in keeping with applicable law and engage DMH or another external party to conduct an investigation into BSH practices.
• DOC and Wellpath must adopt process that allows PS to submit written requests for evaluation and treatment of medical issues that a member of medical staff will review and respond to promptly.
• Wellpath must permanently close the former Intensive Treatment Unit and never allow another PS to experience the trauma of isolation in that space, whether for quarantine, seclusion, or any other justification.
• The Commonwealth, through the State Office of Pharmacy Services or otherwise, should implement standardized formularies for BSH and county correctional facilities or, at the least, require that special consideration be given to nonformulary mental health medication requests from individuals who have transitioned from the BSH to a correctional facility.
• DMH resources should be committed to further DMH engagement with all county correctional facilities regarding mental health treatment, including promoting best practices, and to ensure that PS transitioned to county correctional facilities can access appropriate mental health services and supports while incarcerated and promptly upon their release.

“DLC continues to sound the alarm about significant issues at Bridgewater State Hospital that negatively impact the physical and mental health of individuals held there involuntarily. Incarcerating people in the name of providing mental health care in an unsafe and untherapeutic facility while subjecting them to punitive and illegal restraint and seclusion practices can only be viewed as a failure of our Commonwealth.” Tatum A. Pritchard, Interim Executive Director and Director of Litigation, DLC.

Since its investigation into the use of restraint and seclusion at BSH that began eight years ago, DLC has implored the Commonwealth to put DMH in charge of the facility. DLC has also urged the Commonwealth to construct a modern facility that can effectively provide humane and appropriate treatment, as well as safe working conditions, at BSH.

DLC, as the designated Protection and Advocacy System for Massachusetts, is authorized under federal law to investigate incidents of abuse, neglect, and death of individuals with disabilities throughout the Commonwealth.

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BOSTON – The Disability Law Center (DLC) released a report today finding that the direct support professional (DSP) workforce crisis in Massachusetts is placing people with intellectual and developmental disabilities at risk of harm. The report concludes that low wages and benefits, high vacancies, and staff turnover are leading to understaffed programs and reliance on inexperienced temporary workers or fatigued overtime staff, all of which negatively impacts people with disabilities, their families, and DSP workers.

The report, “Direct Support Professionals: A Workforce Crisis Limiting Security, Human Rights, and Opportunity for People with Intellectual and Developmental Disabilities” is available below.

DLC has investigated frequent instances of abuse and neglect against individuals with disabilities and human rights violations that stemmed from a workforce that is too often understaffed, unsupported, inadequately trained, and poorly supervised. In addition, DLC found that the workforce crisis has resulted in individuals served by Department of Developmental Disabilities (DDS) funded programs being isolated and unable to access the community as required by the Americans with Disabilities Act (ADA). The report, which also includes examples of abuse and neglect, highlights seven recommendations for future action, most for the Executive Office of Health and Human Services.

Rick Glassman, Director of Advocacy at DLC, stated, “State agencies, the people served by them, their families, advocates, and provider agencies and front-line staff should all want the same thing: a well-supported staff who are well trained and fairly paid for demanding and sometimes difficult work.  But wage rates for front line staff are no longer competitive. We are moving further and further away from having a stable and well supervised workforce providing quality services, and more and more people are vulnerable as a result.”

DLC Staff Attorney Jacqueline Hubbard noted: “I spend much of my time monitoring group homes and speaking with the people they serve, their families, and their providers, all of whom experience this staffing crisis. For individuals served and their families, levels of anxiety are escalating, as staffing issues and vacancies place more people at risk of continued and future harm.”

DLC’s Interim Executive Director Tatum Pritchard concluded, “DLC’s work is far from over. As the Protection and Advocacy system in Massachusetts, we will continue to monitor facilities and investigate abuse and neglect, human rights violations, and segregation of individuals with disabilities. However, it is not enough to rely on these interventions and implementation of corrective action after harm has already been done. The Executive Office of Health and Human Services must commit to and invest in making real change by expanding the training, pay, and size of the direct support workforce and enhancing supervision and oversight provided both by providers and the state.”

he report emphasizes that these systemic issues within the direct support workforce are longstanding, and the COVID-19 pandemic only exacerbated the existing problems. Against this backdrop, the report concludes that without action the current crisis will continue to negatively impact the dignity of people with disabilities in Massachusetts and the quality of services they receive, leading to more instances of abuse and neglect, human rights violations, and isolation and segregation.

Read the Report

Contact: Rick Glassman
Director of Advocacy
Disability Law Center
www.dlc-ma.org
Tel: (617) 315-4606
rglassman@dlc-ma.org

###

The Disability Law Center (DLC) is the designated Protection and Advocacy System for the Commonwealth of Massachusetts.  It is authorized under federal law to investigate incidents of abuse and neglect and engage with policymakers on the need for modification or adoption of laws or policies affecting the rights of individuals with developmental disabilities. See e.g., 45 C.F.R. sec. 1326, Subparts B & C.

This report is designed to be accessible to and usable by people with and without disabilities. Please contact us at mail@dlc-ma.org or at (617) 723 8455 if you encounter an accessibility or useability issue with this report.

 In many municipalities, October 27 is the last day local election officials will accept an application to vote by mail in a November 2, 2021 election. If you have not applied yet, but wish to participate in vote by mail, submit your 2021 Vote by Mail Application to your local election officials right away!

Requesting Accessible Electronic Vote by Mail as an Accommodation

Accessible electronic vote by mail systems are readily available in several municipalities for the upcoming election and local election official is obligated to accept and consider requests for accommodation from voters with disabilities.

Examples of Cities/Towns with Accessible Electronic Vote by Mail Options:

• Boston has implemented its Accessible Electronic Remote Voting System, per a settlement agreement that allows voters to mark electronic ballots and officially cast the through an online portal using their personal assistive technology. Boston voters with disabilities who wish to vote by mail or absentee, but cannot complete a standard print ballot privately and independently due to a vision, mobility/dexterity, or other disability (“print disabilities”), should follow the process detailed on here on Boston.gov.

• The following cities/towns now offer the same accessible online portal as Boston:
  • Worcester – See instructions for accessing the system here on Worcesterma.gov.
  • Cambridge – See instructions for applying to vote by mail here on CambridgeMA.gov and submit a request for accommodation (example below) to elections@cambridgema.gov.
  • Watertown – See instructions for applying to vote by mail here on Watertown-MA.gov and submit a request for accommodation example below to townclerk@watertown-ma.gov.

• West Springfield has agreed to provide voters who apply to vote by mail (see see TownofWestSpringfield.org) and request accommodations (example below) access to an accessible PDF ballot and ballot affidavit that can be completed electronically (allowing for a typed name in lieu of a hand-drawn signature for those who require that accommodation) and returned via email to the Town Clerk at ofrizzell@tows.org.

For voters outside of the cities and towns discussed above who wish to vote by mail in upcoming elections and cannot effectively access standard print paper ballots, Disability Law Center (DLC) recommends that you submit your 2021 Vote by Mail Application AND request an accommodation for your local election official by phone or email. Contact information for local election officials is available here: https://www.sec.state.ma.us/ele/eleev/ev-find-my-election-office.htm. Below is an example of a request for accommodation; voters should substitute their personal information for the language in brackets:

I have submitted my 2021 Vote by Mail Application. I provide this request for reasonable accommodations to allow me to cast by vote by mail ballot effectively, privately, and independently. As indicated on my Application, I am a resident of [your CITY/TOWN]. As someone who [e.g., is blind, has low vision, is paraplegic, has limited use of my hands], I cannot vote using a standard print ballot without help from a third party. Accordingly, I request the following accommodations, which the City of Boston currently provides:

An accessible electronic vote by mail system that includes: (a) an electronic vote by mail ballot accessible with screen reading assistive technology that can be officially cast electronically; (b) an accessible electronic means of ballot certification that permits use of a typed name or other proof of identify as a substitute for a hand-drawn signature; and (c) the opportunity to complete my vote by mail application with a typed name in lieu of a hand-drawn signature.

DLC strongly encourages people whose requests for accommodation have been denied by their local election officials to contact our office right away so that DLC can track the denials and discuss follow up. Reach DLC via email at mail@dlc-ma.org or phone at 617-723-8455.

In many municipalities, October 27 is the last day local election officials will accept an application to vote by mail in a November 2, 2021 election. If you have not applied yet, but wish to participate in vote by mail, submit your 2021 Vote by Mail Application to your local election officials right away!

Requesting Accessible Electronic Vote by Mail as an Accommodation

Accessible electronic vote by mail systems are readily available in several municipalities for the upcoming election and local election official is obligated to accept and consider requests for accommodation from voters with disabilities.

For example, as the result of a settlement agreement, the City of Boston has implemented its Accessible Electronic Remote Voting System that allows voters to mark electronic ballots officially cast through an online portal using their personal assistive technology. Boston voters with disabilities who wish to vote by mail or absentee, but cannot complete a standard print ballot privately and independently due to a vision, mobility/dexterity, or other disability, should follow the process detailed on here on Boston.gov right away.

Following adoption of the system in Boston, Worcester also started offering an accessible vote by mail system for voters with disabilities that allow electronic marking and return of an accessible electronic ballot.  For more information, visit Worcesterma.gov.

For voters outside of Boston and Worcester who wish to vote by mail in upcoming elections and cannot effectively access standard print paper ballots, Disability Law Center (DLC) recommends that you submit your 2021 Vote by Mail Application AND request an accommodation for your local election official by phone or email. Contact information for local election officials is available here: https://www.sec.state.ma.us/ele/eleev/ev-find-my-election-office.htm. Below is an example of a request for accommodation; voters should substitute their personal information for the language in brackets:

I have submitted my 2021 Vote by Mail Application. I provide this request for reasonable accommodations to allow me to cast by vote by mail ballot effectively, privately, and independently. As indicated on my Application, I am a resident of [your CITY/TOWN]. As someone who [e.g., is blind, has low vision, is paraplegic, has limited use of my hands], I cannot vote using a standard print ballot without help from a third party. Accordingly, I request the following accommodations, which the City of Boston currently provides:

An accessible electronic vote by mail system that includes: (a) an electronic vote by mail ballot accessible with screen reading assistive technology that can be officially cast electronically; (b) an accessible electronic means of ballot certification that permits use of a typed name or other proof of identify as a substitute for a hand-drawn signature; and (c) the opportunity to complete my vote by mail application with a typed name in lieu of a hand-drawn signature.

DLC strongly encourages people whose requests for accommodation have been denied by their local election officials to contact our office right away so that DLC can track the denials and discuss follow up. Reach DLC via email at mail@dlc-ma.org or phone at 617-723-8455.

The City of Boston and the Boston Center for Independent Living (BCIL), Bay State Council of the Blind (BSCB), and five Boston voters, represented by the Disability Law Center (DLC), entered into a Settlement Agreement on September 8, 2021 to establish an Accessible Remote Voting System that allows City of Boston voters with disabilities to participate in the absentee voting and vote by mail programs privately and independently.

Per the Agreement, the Accessible Remote Voting System must be available “for the 2021 Boston preliminary and regular municipal elections and for every election through December 31, 2025” as an accommodation for Boston voters who have disabilities, such as blindness, low vision, and mobility/dexterity disabilities, that make it difficult or impossible to effectively access standard print materials (“print disabilities”). Key components of this System provide, in lieu of a standard print paper ballot, an accessible electronic ballot that can be marked and officially cast electronically through a web-based platform or other accessible mechanism compliant with current World Wide Web Consortium’s Web Content Accessibility Guidelines (WCAG 2.1, Level AA). The complete agreement appears below.

The online Accessible Remote Voting System is now live and available as an accommodation for Boston voters with print disabilities. To request access to the System, voters with print disabilities should submit the following two items in writing to the Boston Elections Department (email: election@boston.gov; phone: 617-635-8683; website: https://www.boston.gov/departments/election):

1. An application to vote by mail or to vote absentee. If accessible to them, voters may complete and email the forms currently available – 2021 Vote by Mail Application (https://www.sec.state.ma.us/ele/ elepdf/2021-Vote-by-Mail-Application.pdf); Absentee Ballot Application (https://www.sec.state.ma.us/ele/elepdf/absentee/English-Absentee-Ballot-Application.pdf. Voters who cannot access the forms currently available should apply via email stating: (a) that they want access to a Vote by Mail Ballot or an Absentee Voting Ballot and are submitting their application via email because the current form is not accessible due to their disability; and (b) their full name, voter registration address, date of birth, telephone number, email address, and ballot mailing address.
2. A written request for accommodation. The voter’s request for accommodation should explain that they need access to the Accessible Remote Voting System in order to vote privately and independently because they are unable to effectively access a standard print ballot due a disability. This written request can be sent via email.

Example of a Request for Accommodation: I am a registered Boston voter who is blind and cannot effectively access a standard print ballot. To vote privately and independently by mail, I request access to the Accessible Remote Voting System.

If you have any problems with the process of requesting access to the Accessible Remote Voting System, please contact DLC via email at mail@dlc-ma.org or by calling 617-723-8455.

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