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Prepared by the Mental Health Legal Advisors Committee

April 2020

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COVID-19  fact Sheet and how we can help.

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Joined by a lupus advocate, a medical school professor and a patient organization, the Disability Law Center sent this letter to state officials, urging them to protect lupus patients who are unable to get their medication because of prescribing practices related to the coronavirus.  The letter was signed by 38 rheumatologists and other medical professionals, as well as other disability rights advocates. Please read the attached letter to learn about this issue and our valued partners in this important work.

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The Disability Law Center (DLC) continues to actively work to prevent and address discrimination, abuse, and neglect faced by people with disabilities during the COVID-19/Coronavirus pandemic. This unprecedented situation is giving rise to new and different issues that require our attention. DLC’s efforts to address COVID-19-related issues to date include:

• Working to shape policies to prevent medical rationing that discriminates against people with disabilities;
• Initiating investigations and seeking information about congregate care facilities in which people with disabilities reside based on reports related to COVID-19 infection and deteriorating conditions for patients and residents.
• Actively monitoring conditions within and concerns raised by persons served in facilities, including Worcester Recovery Center and Hospital, Bridgewater State Hospital, and Vibra Hospitals;
• Collaborating with a lupus advocate, medical school professor, and a patient organization to send a letter to state officials urging them to protect lupus patients who are unable to get their medication (chloroquine/hydroxychloroquine) because of prescribing practices related to COVID-19.
• Advocating for DDS and DMH to create written protocols about staffing practices to guard against staff transmission to group home and shared living residents;
• Advocating for I/DD group homes to provide residents access to virtual and outdoor, socially distanced visitation with guardians;
• Challenging unreasonable restrictions on movement by group homes and shared living providers that serve persons with mental health issues;
• Calling on the Governor and top public health officials to take steps to protect prisoners with disabilities, which include: reducing the prison population by releasing from custody prisoners with disabilities and serious medical conditions that place them at particular risk of serious illness from COVID-19; providing supplies and services necessary to help prevent the spread of COVID-19 in correctional facilities; ensuring that medical and mental health services for prisoners with disabilities are not interrupted; ensuring that accessible telecommunications are available to prisoners with disabilities; and, providing DLC with relevant written policies and procedures concerning those protections;
• Collaborating with other organizations and community partners to devise advocacy strategies to promote and protect the rights of persons with disabilities and to create and distribute informational resources concerning their rights during the public health crisis;
• Regularly participating in state-wide and national collaborations aimed at identifying and addressing emerging issues facing people with disabilities as a result of the pandemic;

Instituting a COVID-19 Attorney Point Person at the DLC to ensure all individuals reporting COVID-19 disability-related issues are receiving timely information and services.

If you would like to share your disability-related concerns about COVID-19 or your legal rights during this time, please email us at mail@dlc-ma.org.

Please note – we are using this information to advocate systemically for people with disabilities and submitting your input may not result in a new intake for your concern. However, it will provide valuable information for us to continue advocating for the rights of people with disabilities.

For patients with the coronavirus who need communication tools and supports due to speech-related disabilities: COVID-19 Communication Rights Toolkit with Printable Patient Accommodations Request Form:

https://communicationfirst.org/covid-19/

The Disability Law Center has signed onto a letter to the Governor and other distinguished State Officials. This letter concerns the Commonwealth’s current altered standard of care protocol and the need for immediate actions to avoid the potentially discriminatory allocation or withdrawal of life-saving resources from persons with disabilities.

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DLC recently submitted a letter to Governor Baker and top Public Safety Officials seeking more information and protective measures to ensure the health and safety of people with disabilities and serious medical conditions currently incarcerated in Massachusetts correctional facilities.

March 23, 2020

VIA EMAIL

Charles D. Baker, Governor
Massachusetts State House
24 Beacon Street, Room 280
Boston, MA 02133

Commissioner Carol Mici
Dept. of Correction Central Headquarters
50 Maple Avenue
Milford, MA 01364

Gloriann Moroney, Esq., Chaire
Mass. Parole Board Central Office
12 Mercer Road, Natick, MA 01760

Thomas A. Turco, Secretary
Executive Office of Public Safety and Security
1 Ashburton Place, Suite 2133
Boston, MA 02108

Peter Koutoujian, Sheriff and Mass. Sheriffs’ Association President
Middlesex Sheriff’s Office
400 Mystic Avenue, 4^th Floor
Medford, MA 02155

Re: Maintaining Prisoner Safety During COVID-19 Pandemic

Dear Governor Baker, Secretary Turco, Commissioner Mici, and Sheriff Koutoujian:

As the Commonwealth braces for the full impact of COVID-19, we know that each of you share our concern for the effect on all Massachusetts residents. We write today concerning a population of residents at particular risk of infection – individuals with disabilities and serious medical conditions in our correctional facilities.

It is well understood that contagions like COVID-19 introduced into a jail, house of correction, or prison can quickly infect a large proportion of both prisoners and staff. This does not just pose a threat within prison walls, but also to the community at large when staff return home to their families and friends.

Moreover, a significant number of prisoners in Massachusetts correctional facilities fall within the high-risk groups more likely to develop serious illness or die if infected with COVID-19. Our jails and prisons hold individuals who have an array of disabilities and serious medical conditions, including cardiovascular diseases, diabetes, hepatitis, chronic obstructive pulmonary disease, chronic kidney diseases, and cancer. Some of these individuals are housed in specific facilities or specialized units based on their need for mental health and medical treatment and/or for assistance and accommodations related thereto.[1] There are also many elderly prisoners. Indeed, as of January 1, 2018, there were well over 900 individuals over 60 years of age under the jurisdiction of DOC alone.[2] Not surprisingly, these groups overlap quite a lot.

The Disability Law Center (DLC) has a federal mandate as the Commonwealth’s Protection and Advocacy Agency[3] (P&A) to protect and advocate for individuals with disabilities, including those who are criminally and civilly detained in correctional facilities. In keeping with this mandate, we write to request that you take the following steps to ensure the health and safety of prisoners with disabilities and serious medical conditions in your care and custody during this public health crisis:

• Immediately identify every individual in the custody of DOC and county correctional facilities who have disabilities and/or medical conditions that place them at high risk for serious illness if they are infected by COVID-19;
• Approve, on an expedited basis, release of individuals identified per paragraph (1) who are eligible for release on some form of supervised release (e.g., parole, medical parole, temporary furlough, home confinement, ) or through executive clemency mechanisms (commutation or pardon);
• Approve, on an expedited basis, release of individuals identified per paragraph (1) who are within six (6) months of completing their sentence and do not pose an immediate threat of physical harm to the community;
• Approve, on an expedited basis, release of individuals identified per paragraph (1) who are currently awaiting parole revocation or have been revoked on the basis of technical violations and return them to community parole supervision;
• For individuals identified per paragraph (1) who are not released, implement protocols to minimize their risk of exposure to COVID-19, including through provision of hygiene supplies and available personal protective equipment, and increased cleaning and sterilization in the Health Services Units, the SNF, ADLs, RTUs, STPs, the BMU, Bridgewater State Hospital, and the Bridgewater Units at OCCC;
• Ensure that individuals identified per paragraph (1) are not held in prolonged isolation on the basis of their disabilities and/or medical conditions – absent a COVID-19 diagnosis – and are provided daily access to outdoor recreation time, contact with their families, friends, and attorneys through telecommunications;
• In consideration of measures to limit or prohibit visitation, ensure that all individuals with disabilities and/or serious medical conditions in Massachusetts correctional facilities receive daily access to free telecommunications, including standard telephones, amplified telephones, captioned telephones (CapTel), and videophones;
• Ensure that all individuals diagnosed with mental illness and any other individuals experiencing mental health crisis have the ability to receive confidential meetings with mental health clinicians, as opposed to only contacts with mental health clinicians at cell doors; and
• Ensure that access to regular medical services for all individuals with disabilities and/or chronic medical conditions are not interrupted or truncated.

DLC calls upon the Commonwealth to treat the above as continuing obligations during the pendency of any Massachusetts State of Emergency and National State of Emergency related to COVID-19.  In addition, in order to have maximum effect in lowering the threat to vulnerable prisoners as well as to the prisoner population as a whole and correctional staff, these actions should be undertaken swiftly before COVID-19 is introduced into Massachusetts correctional facilities; DLC understands that, currently, diagnosed cases of COVID-19 are limited to the Massachusetts Treatment Center (three prisoners, one staff person). To be clear, the above requests are intended to supplement and inform the measures state agencies must take to protect ALL prisoners from infection, such as those suggested by Prisoners Legal Services, Mental Health Legal Advisors Committee, and the American Civil Liberties Union of Massachusetts.

Further, DLC requests in its P&A role that the DOC, Parole Board, and Sheriffs’ Association, to the extent is has developed guidance for Sheriff’s Departments, please provide any written policies and protocols adopted related to this crisis, including those concerning:

• Prevention and mitigation of both COVID-19 introduction into correctional facilities and spread to prisoners and staff;
• Screening and testing for individuals presenting symptoms that may be indicative of COVID-19 infection and for individuals exposed to other who have presented symptoms or tested positive;
• Quarantine of individuals who have tested positive or present symptoms that may be indicative of COVID-19 infection;
• Increased cleaning and sterilization of living quarters, communal bathrooms, communal eating areas, areas for the provision of medical and mental health services, medical equipment, phones, assistive technology, etc.
• Access to information for prisoners and staff concerning COVID-19 and recommended safety precautions to prevent infection;
• Provision of personal protective equipment, soap, disinfectant, cleaning supplies, hand sanitizer with at least a 60% alcohol content, tissues, and extra uniforms;
• Access to mental health and medical services unrelated to COVID-19; and
• Access to recreation, telecommunications, and other programming.

Thank you very much for taking the time review and consider these requests during this unprecedented crisis.  Please contact DLC will any questions concerning these requests. We look forward to learning more about your current efforts and plans to protect this vulnerable population.

Sincerely,

Marlene Sallo

Executive Director

[1] Such units include the Assisted Daily Living (ADL) Units at MCI-Norfolk and MCI-Shirley; the Skilled Nursing Facility (SNF) at MCI-Shirley; the Bridgewater Units at Old Colony Correctional Center (OCCC), Residential Treatment Units (RTUs), Secure Treatment Programs (STPs), and the Behavior Management Unit (BMU).

[2] Massachusetts Department of Correction, Prison Population Trends 2017, at https://www.mass.gov/files/documents/2018/09/28/PrisonPopTrends_2017_Final.pdf.

[3] This mandate was first codified through the passage of the Protection & Advocacy for People with Developmental Disabilities (PADD) Act. 42 U.S.C. § 15043(a). Congress extended the protections of the PADD Act, incorporating them by reference into legislation protecting persons with other forms of disabilities. This includes the: Protection & Advocacy for Mentally Ill Individuals (PAMII), 42 U.S.C. § 10805, Protection & Advocacy for Individual Rights (PAIR) Act, 29 U.S.C. § 794e(f), and the Protection & Advocacy for Individuals with Traumatic Brain Injury (PATBI) Act. 42 U.S.C. § 300d-53(k).

For Immediate Release                                             

Contact: Marlene Sallo, Executive Director     

617-723-8455 x145                                        

msallo@dlc-ma.org

DLC Issues Recommendations for Bridgewater State Hospital

Pursuant to its legislative charge to monitor the efficacy of service delivery reforms at Bridgewater State Hospital (“BSH”), the Disability Law Center (“DLC”) issued its six-month report summarizing its findings from its monitoring efforts there September 2019 through February 2020.  DLC continues to raise the same concerns regarding the deteriorating physical plant and now expands those concerns to include positive mold testing results. It is important to note that the extent of DLC’s monitoring would not be possible without our broad access, and our mold testing would not be possible without our expanded authority granted under Line Item #8900-0001. DLC also continues to raise concerns around the administration of medication and the disparate treatment of individuals served under DOC, rather than Wellpath, security.

Key recommendations:

• Deteriorating Physical Plant: For well over a year now, DLC has urged DOC to conduct extensive mold sample swab testing throughout BSH (see DLC recommendation in our February 25, 2019 and July 15, 2019 reports). DOC repeatedly and consistently, not only refused to do such testing, but actively denied DLC access to perform the tests. During this reporting period, DLC was granted specific authority under Line Item #8900-0001 to conduct mold testing, including in areas where persons served (“PS”) are not living. As such, DLC toured BSH with our contracted mold expert on December 5, 2019 and returned on December 19, 2019 to collect  samples throughout the facility for testing. The testing revealed extensive mold in almost every single area swabbed by our expert, including HVAC systems/vents. Consistent with DLC’s prior recommendations, DLC submits that, instead of the resource drain of patchwork fixes for the existing BSH facility, the Commonwealth needs to construct a modern facility that can effectively provide humane and appropriate treatment.
• Administration of Medication: DLC renews its concerns raised in our May 2018 report that medication should be administered with informed consent first and, if that is not possible, then a court order should be sought. Further, all individuals in need of “strict security” during psychiatric evaluation and/or treatment should be under the auspices of the Department of Mental Health.
• Disparities in Use of Force between BSH and Old Colony Correctional Center (“OCCC”) Bridgewater Units: From chemical agents to handcuffs, DOC security measures at OCCC escalate situations and are both inflammatory and trauma-inducing to PS. We believe the current distinctions used to differentiate between these populations do not necessarily reflect different security risks. DLC urges DOC to ensure uniformity in the security protocols at BSH and the OCCC Units and to discontinue security measures based on a culture of punishment and control, namely, chemical agents, handcuffs, and utilization of tactical teams.
• Contraband and Security at BSH: Wellpath and DOC have and should continue to collaborate on safety and security improvements. This should be done while prioritizing the treatment and well-being of the PS at BSH.
• Continue to Make Progress on Policies and Practices: Wellpath and DOC must continue to identify and respond to issues where there is a lack of clarity and/or no policy guidance. Specifically, DLC recommends that DOC formulate policies on PREA consent standards and OCCC ISOU admissions as soon as possible, and that Wellpath continue efforts to track and report on assaults.

Marlene Sallo, the Executive Director of DLC, stated, “For years, we have been raising concerns about the hazardous living conditions at Bridgewater State Hospital and the need for DOC to ensure the health and safety of Persons Served and staff alike. Our report makes it perfectly clear: DOC must take swift and appropriate action to address the mold and multiple physical plant issues at BSH. Construction of a modern facility will be the only effective way to provide humane and appropriate treatment for Persons Served at BSH.”

As it has done in every one of its reports, DLC continues to implore the Commonwealth to construct a safe and modern facility that can effectively provide humane and appropriate treatment to this extremely needy population. DLC urges state government to proceed with addressing this long overdue unaddressed need under the auspices of the Department of Mental Health.

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.

Read the Report

Public Statement by the Disability Law Center on the March 4, 2020 Decision by the FDA to Ban Electrical Stimulation Devices (ESDs) for Self-Injurious or Aggressive Behavior.

March 4, 2020

Today’s announcement by the FDA finally bans painful electric shock of persons with disabilities used for the purposes of behavior modification.  Such measures have been widely discredited in clinical literature and practice and are still regularly used at only one facility in the entire country, regrettably here in Massachusetts.

For over six years, the FDA carefully studied this issue using external and internal experts in range of fields such as medicine, psychiatry, psychology, neurology, special education, biomechanical engineering, statistics and medical ethics.   It also heard testimony from a broad range of stakeholders including former residents from the Judge Rotenberg Center, families, providers, experts and advocates.  This includes more than 1,500 public comments received about the proposed rule, as well as approximately 300 comments submitted to the April 2014 FDA advisory panel meeting.

FDA’s final conclusion is that these devices present an “unreasonable and substantial risk of illness or injury.” We appreciate the agency’s detailed, multi-disciplinary expert analysis, its careful deliberate process, and its commitment to protecting people with disabilities from pain and other physical and emotional injury.

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FOR IMMEDIATE RELEASE:
February 18, 2020

Media Contact:
Josh Levitt: 845-641-3654
cohenmilstein@berlinrosen.com

LANDMARK AGREEMENTS ESTABLISH NEW MODEL FOR ONLINE ACCESSIBILITY IN HIGHER EDUCATION AND BUSINESS

Settlement with MIT Follows Similar Agreement with Harvard University to Caption Online Content;

Agreements Represent the Most Comprehensive Set of Online Accessibility Requirements

BOSTON—The National Association of the Deaf (NAD) announced today a landmark settlement with the Massachusetts Institute of Technology (MIT) that institutes a series of new guidelines to make the university’s website and online resources accessible for people who are deaf and hard of hearing. The settlement follows a similar agreement with Harvard University in November 2019, which together represent the most comprehensive set of online accessibility requirements in higher education and provide a new model for ensuring worldwide online and digital accessibility in academia and business for people who are deaf and hard of hearing.

MIT, one of the most celebrated academic research institutes in the world, has agreed to provide industry standard captioning for publicly-available online content, including video and audio content posted on MIT.edu as well as MIT’s YouTube, Vimeo, and Soundcloud pages, certain live-streaming events and online courses such as Massive Online Open Courses (MOOCs), MITx and MIT OpenCourseWare.

The terms of the settlement are included within a consent decree, which can be enforced by the court. The court must approve the consent decree before it may become effective.

MIT must also implement a public process to manage these requests. MIT is also required to submit reports every six months beginning in June 2020 to NAD and the Disability Law Center with information about the number of requests received, among other details.

This settlement was reached four years after this litigation began in 2015, when it was filed in the U.S. District Court for the Western District of Massachusetts as a class action lawsuit. The lawsuit was prompted by the recognition that, notwithstanding the description of MIT’s online resources as “open and available to the world,” many of its videos and audio recordings lacked captions or used inaccurate captions. MIT had no published policies in place to ensure these learning tools were accessible to people who are deaf and hard of hearing. In the United States alone, there are approximately 50 million deaf and hard of hearing people. 

During the litigation, MIT filed a motion to dismiss the case. In response the court ruled that federal laws prohibiting disability discrimination covered MIT’s online content.

The named plaintiffs in this class action lawsuit, NAD, C. Wayne Dore, Christy Smith and Lee Nettles, were represented by Cohen Milstein Sellers & Toll, the Disability Law Center, the Disability Rights Education & Defense Fund, the Civil Rights Education and Enforcement Center, and also the NAD.  

“The settlements with MIT and Harvard usher in a new era of accessible online learning in higher education. The civil rights mandate is clear – all colleges and universities must ensure that the video and audio content on their websites are accessible through quality captioning.” said Howard A. Rosenblum, Chief Executive Officer, National Association of the Deaf.“Providing equal access through new and evolving technologies is at the core of the Americans with Disabilities Act. This announcement opens up a huge new world of learning for the tens of millions of people who were previously unable to access MIT’s wealth of online educational resources,” said Arlene B. Mayerson, Directing Attorney at the Disability Rights Education & Defense Fund.

“These agreements with MIT and Harvard are ground-breaking and historic, opening new doorways in learning for deaf and hard-of-hearing students and professionals and setting a new standard for civil rights enforcement for accessibility in online learning. We urge other institutions that share their research, case studies, and course work to the public to follow this precedent to ensure their content is accessible to deaf and hard of hearing people, worldwide,” said Joseph M. Sellers who heads the civil rights practice at Cohen Milstein Sellers & Toll.

“There’s no excuse for any institution to shortchange the millions of people who are deaf and hard of hearing. We cannot pick and choose what types of accessibility we want to provide—it’s a fundamental right that everyone deserves. We’re pleased the agreement ensures all learners will be treated equally,” said Amy F. Robertson, Co-Executive Director of the Civil Rights Education and Enforcement Center.   

“These agreements represent the most comprehensive framework for ensuring that higher education institutions make their online and digital resources available for the deaf and hard of hearing. Nobody should be denied the opportunity to an education because of a disability, and the digital doors of MIT are now open for everyone,” said Marlene Sallo, Executive Director of the Disability Law Center.

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