Rouleau v. Department of Developmental Services

• Decision Date: 10 August 2014
• Docket Number: MICV2014-5385-F
• Parties: Dorothy Rouleau et al., as Guardians of Margaret Rouleau v. Department of Developmental Services No. 128022
• Court: Massachusetts Superior Court

Dorothy Rouleau et al., as Guardians of Margaret Rouleau v. Department of Developmental Services

No. 128022

No. MICV2014-5385-F

Superior Court of Massachusetts, Middlesex

August 10, 2014

MEMORANDUM OF DECISION AND ORDER ON PLAINTIFFS' MOTION FOR STAY OF TRANSFER

DENNIS J. CURRAN, Associate Justice.

Dorothy and Barbara Rouleau have sued the state Department of Developmental Services over the transfer of Margaret Rouleau from the Fernald Developmental Center to the Wrentham Developmental Center in Wrentham, Massachusetts. The Rouleaus have moved to stay the transfer of Margaret Rouleau pending the outcome of their challenge under G.L.c. 30A to the decision of the Division of Administrative Law Appeals (" DALA"), which approved the Department's move to transfer her.

For the following reasons, the Rouleau's motion must be DENIED.

BACKGROUND

Margaret Rouleau

Margaret Rouleau is an 85-year-old woman with a moderate intellectual disability who has resided at Fernald for about 65 years. DALA Decision at 5-6. Although her overall health has currently been described as " stable, " Ms. Rouleau suffers from a number of health disorders, including Type II diabetes, rigid scoliosis, hypertension, significant hearing loss in the right ear, reduced sight in the right eye, and diverticulitis. DALA Decision at 6-7; Antanitus Affidavit P5. Furthermore, she has a history of frequent urinary tract infections, pneumonia, and breast cancer. DALA decision at 6-7. She also suffers from decubitus, a serious skin disorder which leads to the breakdown of the skin as a result of spending long periods of time in a single position. Id . As a result of this predisposition, Ms. Rouleau sleeps on a special air-flow mattress which reduces the likelihood of skin breakdown by evenly distributing pressure along her body, and her skin must be conditioned by special staff on a daily basis. DALA decision at 7. Due to her numerous medical conditions, Ms. Rouleau uses a large motorized wheelchair which she controls herself with the occasional assistance of facility staff. DALA decision at 6.

Notwithstanding her physical ailments, Ms. Rouleau is both verbal and social. DALA decision at 6. She can carry on basic conversations, and enjoys myriad social activities: she likes going shopping listening to music, and has previously gone on annual overnight trips to Cape Cod. DALA decision at 7-8. However she did not go to Cape Cod in 2013 because the previous year's trip resulted in significant mental confusion for several weeks afterwards. Id . In addition, Ms Rouleau works five days a week assembling HIV kits for the Department of Public Health, and is proud of her duties. DALA decision at 15-16. She also regularly attended Mass. at Fernald until the facility's chapel closed in 2013. DALA decision at 9. She is currently attending Mass. at a different building on the Fernald campus. Id . However, this service will most likely cease in the near future, forcing Ms. Rouleau to attend Mass. off-site. DALA decision at 9; Kingston Affidavit ¶ 7.

Ms Rouleau is classified as a Ricci class member, which entitles her to support from the Department for the entirety of her life. DALA decision at 9. As part of this support by DDS, Ms. Rouleau's guardians and medical team have created an Individual Support Plan which identifies her needs, relationship objectives, and defines her participation in the larger community. Id . Six objectives have been designed to further her personal well-being, community membership and personal growth needs: (1) Ms. Rouleau identifies and purchases certain items related to her daily living; (2) counts to 11 the number of HIV kits she prepares as part of her work; (3) correctly names and evaluates medications given to her; (4) cleans her space at a dining table following her meal after being given a verbal cue; (5) improves her left arm's range of motion with the assistance of an occupational therapist; and (6) keeps a steady beat to a short song with the help of a manual metronome. DALA decision at 9-10.

Fernald and Its Closure

Fernald Developmental Center is an Intermediate Care Facility for the Mentally Retarded (ICR/MR) in Waltham, Massachusetts, and has been in operation for over 120 years. DALA decision at 4. In 2003, the Massachusetts legislature directed the Department to close or consolidate 6 ICR/MRs in an effort to reduce costs and reduce or eliminate discrimination against the mentally-disabled and encourage their integration into the community. DALA decision at 4-5. The Department originally intended to move Fernald residents to one of the other ICR/MRs, or to a " community-based setting." Id . This move was vigorously contested by several years of litigation, which was resolved eventually by the United States Court of Appeals for the First Circuit's decision in Ricci v. Patrick . DALA decision at 4-5; Ricci v. Patrick , 544 F.3d 8, 17 (1st Cir. 2008). That Court held that the Department could close Fernald provided the residents which were to be transferred were given " equal or better" service. Ricci 544 F.3d at 17. Consequently, the gradual closure of Fernald has continued; although it once contained almost 2, 000 persons in 68 buildings, Fernald now only operates a handful of buildings, and houses only two patients, one of which is Ms. Rouleau. DALA decision at 4-5; Kingston Affidavit ¶ 7. Fernald also suffers from frequent power plant problems. DALA decision at 4-5. In 2012, a steam leak forced Ms. Rouleau and other residents from Cottage 9 to Malone Park 23, where she currently resides. Id . This relocation was difficult for Ms. Rouleau because of its abruptness, and left her in a confused state for several weeks afterwards. DALA decision at 12. Furthermore, the reduced staff on hand at Fernald has left it vulnerable; squatters and homeless people live in abandoned parts of the facility, while copper thieves and vandals have ransacked individual buildings. Kingston Affidavit ¶ 5. The loss of other patients and staff have progressively limited the number of social activities available to Ms. Rouleau. Kingston Affidavit ¶ ¶ 12-14.

On April 26, 2013, the Department notified Ms. Rouleau's guardians of its intent to transfer her to Wrentham under the authority of G.L.c. 123B. DALA decision at 2. They objected to the transfer. Id . The Department referred the matter to DALA, which held a hearing in accordance with G.L.c. 123B, § 3, ¶ ¶ 2-3. Id . DALA conducted three days of hearings and took live testimony from over 20 witnesses. Over 30 exhibits of evidence were introduced. The magistrate personally inspected both Fernald and Wrentham. DALA decision at 2-3. And, as part of her analysis, the magistrate conducted a side-by-side comparison of the various aspects Wrentham and Fernald with regard to Ms. Rouleau's quality of life, and found the following:

Residence : The living space at Wrentham would be a small diminishment in services for Ms. Rouleau even though the proposed bedroom space would be roughly the same size, and would fulfill the requirements of her Support Plan. DALA decision at 31.

Staff : There would be no change in services with regards to staff; Ms. Rouleau would know two direct care staff at Wrentham, and additional members would become familiar with her over time. DALA decision at 32-33. While there are more familiar staff at Fernald currently, high turnover rates and the downsizing of the facility have reduced their number. DALA decision at 32-33; Kingston Affidavit ¶ ¶ 12-14.

Medical and Nursing Support : Wrentham would be an improvement over Fernald. For example, Wrentham possesses 24-hour nursing care, and has the May Center, which would provide a level of care similar to a hospital. DALA decision at 33-34. Furthermore, there has never been an occurrence of skin breakdown at Wrentham due to staff diligence, but there have been two occurrences of skin breakdown at Wrentham within the past five years. Id . Consequently, the constant medical attention which Ms. Rouleau requires on account of her myriad medical conditions is best served by the Wrentham facility. Id .

Vocational Program, Rehabilitative Services, Leisure, and Recreational Activities : The work offered to Ms. Rouleau at Wrentham would likely be seen by her as a " demotion, " but her Support Plan counting objective would be maintained. DALA decision at 34. Secondly, Wrentham staff are required to spend half of their work hours with residents, which is not the case at Fernald. Id . Finally, Ms. Rouleau could participate in a wide range of activities at Wrentham. Id . This is not possible at Fernald, where a skeleton crew of staff and the only one other resident precludes large social activities and are obviously isolating Ms. Rouleau. DALA decision at 35. DALA also noted that Ms. Rouleau was aware of this progressively severe isolation. Id .

The DALA decision recognized that these factors alone would not allow the transfer to go forward. DALA decision at 37. However, the magistrate noted that the presence of a critical factor " tips the balance in Wrentham's favor":

Fernald cannot offer a stable environment. It is better for Margaret R[ouleau] to leave Fernald now, while is in fragile, but stable health, rather than in the future when, as she ages, her health and her ability to weather the transition may worsen. Margaret R[ouleau] has had difficulty with transitions in her living and work environments, yet she also has shown some resiliency. If the transition is managed well and progresses at her pace, she will adjust.

DALA at 37; accord Antanitus Affidavit ¶ ¶ 6-11. As required by G.L.c. 123B, § 3, DALA also considered the objections of the Rouleaus to her transfer to Wrentham and addressed their objections:

First, DALA refuted the objection that the

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