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Council of the District of Columbia Draft ReportTo: All Councilmembers EXECUTIVE SUMMARYThe Committee on Human Services and the Committee on Government Operations conclude their 3-month investigation into the actions taken by the Executive branch to address concerns about the health and safety of wards of the District of Columbia who have mental retardation or other developmental disabilities. The investigation concludes that various actions or omissions by the Executive branch between February and December, 1999 prevented prompt and coordinated action to intervene in situations where the health and safety of the individuals in the care of the Mental Retardation and Developmental Disabilities Administration (MRDDA) were at risk. The investigation further revealed that much of the administration's failure to act timely and decisively can be traced to two factors:
The Committees applaud plans now underway by the Executive branch to reform the Mental Retardation and Developmental Disabilities Administration. In conducting this investigation, the Committees reviewed a large volume of documents and information from the Executive Office of the Mayor (EOM), various city agencies, the Evans litigation, and other interested persons and organizations. The Committees also took sworn testimony at three public hearings from current and former agency employees and the EOM. The Committees approved the Report on July 7, 2000, by votes of 3-0 and 3-0, with 6 Councilmembers voting in favor. Sections containing a factual background, a summary of the findings of the investigation, the recommendations of the Committees follow. An appendix of significant documents reviewed during the course of the investigation also is available. FACTUAL BACKGROUNDA. The Evans CaseAny discussion of the treatment of persons with developmental disabilities in the District necessarily begins with the Evans litigation. Evans v. Williams is the class action lawsuit filed on behalf of Joy Evans and other residents of the now-defunct Forest Haven institution. Interviews with Corporation Counsel, DHS, the Pratt Court Monitor, and the Special Master revealed that in the mid-1990's during the District budget crises, the primary focus of the litigants was to make sure that MRDDA providers received payment for services. Witnesses stated that the problem with payments became so acute that some providers were unable to survive. Moreover, the lack of an effective payment system virtually eliminated any leverage MRDDA had to compel providers to make whatever enhancements in care were needed. The inability to timely pay providers also led to then-Chief Financial Officer Anthony Williams being called to testify before the court regarding the efforts of his office to comply with the court's mandate. That testimony occurred in fall 1996. Although the testimony demonstrates that CFO Williams was well aware of the financial crisis, there is nothing in the transcript to indicate that CFO Williams was aware of any allegations of abuse or neglect at that time. At the same time the District's budget problems were hampering the provider community, MRDDA also suffered from a lack of funding so severe that the monitoring program was eliminated from FYI 997 to FYI 998. Elimination of the MRDDA monitoring function meant that there was no agency in the District of Columbia regulating the quality of care given to wards of the District with developmental disabilities. Slow payments to providers and nonexistent monitoring were contributing factors to a substandard level of care provided to MRDDA customers that likely would have gone completely undetected but for the court appointed monitor. Despite the fact that for a significant period of time the District lacked its own monitoring capability, MRDDA and Corporation Counsel officials were aware of problems in the level of care being provided to its customers. Pursuant to Court Order, the Pratt Court Monitor was required to file quarterly reports evaluating the District's level of compliance. To date, the District has never been in full compliance with the court order. Beginning with the [date] report, the monitor's quarterly reports are replete with examples of inadequate care and varying degrees of neglect. .These reports were provided directly to officials at MRDDA and the Office of Corporation Counsel. Thus, notwithstanding the District's inability to conduct its own monitoring, District officials had knowledge of programmatic problems within the MRDDA network of care throughout the period encompassing the budget crisis. B. The Washington Post InvestigationThe first Freedom of Information Act (FOIA) request from The Washington Post leading to the March 1999 articles concerning MRDDA was received by DHS in the fall of 1998. But it was not until February 1999 that the significance of the Post inquiry, began to resonate within, DHS. Shortly after Mayor Williams took office in January 1999, Linda Wharton-Boyd moved from the Mayor's office to run the public information office at DHS. One of the first issues to come. to her attention was the existence of a Washington Post FOIA concerning MRDDA. In early February 1999, Wharton-Boyd and her staff produced a briefing1 outlining the issues that they understood would be included in the soon-to-be-published articles. The briefing summarized the issues that would be discussed in the -forthcoming article and providing details of specific instances of neglect or abuse that The Washington Post had uncovered. At the beginning of the Williams administration, the Mayor instituted a reporting process called the Front Burner Reports (Front Burner). According to the Mayor's hearing testimony, the front burners were intended to alert the Executive Office of the Mayor to problems that needed immediate attention. According to interviews, the front burners were required to be submitted to the Executive Office of the Mayor (EOM) each Thursday. A staffer within the EOM then summarized the front burners. Issues appearing in the front burners were discussed within the EOM on the following Monday. Notwithstanding the summaries available to the Mayor and his senior executive staff, the Mayor strove to read each of the original front burner reports. On February 10, 1999, the Post investigation of MRDDA was first cited in a DHS front burner. This front burner was signed by DHS Director Jearline Williams and addressed to Reba Pittman Evans, the Mayor's former Chief of Staff.2 The text of the front burner itself is unrevealing. Indeed, a number of witnesses interviewed by the Special Counsel indicated that this front burner, and other similarly worded documents, indicated that this issue was being treated by DHS as a mere public relations problem. The text of the front burner is, at best, ambiguous and perhaps may be considered insufficient to place a reasonable administrator on notice that serious ongoing quality of care issues existed within the MRDDA network. Nevertheless, the Wharton-Boyd briefing document was attached to the February 10, 1999, front burner. As noted above, this briefing document is unmistakable in its articulation of a serious, persistent, and ongoing problem within MRDDA. Thus, while it is arguable whether the front burner standing alone would place a reasonable administrator on notice, when coupled with the briefing document, the critical nature of the problem was readily apparent. Norman Dong, then the Interim Deputy Chief of Staff for Management, was briefed concerning the Post investigation on or about February 12, 1999. If Dong had not seen the briefing paper when it was forwarded as an attachment to the front burner, he certainly received a copy at this briefing. At least four witnesses stated that Dong received a copy of the briefing document during this meeting with DHS officials. Moreover, the same witnesses indicated that the issues contained in the briefing were discussed in detail during this meeting. Dong admitted that the meeting occurred and that the issues were discussed. According to Dung, he asked Director Williams what she was doing to address the problem. The Director provided a two-pronged response. First, according to Dong, Director Williams stated that the problems to be addressed in the article were historical in nature. Dong stated he believed that while the problems identified were serious, they were not problems that continued to haunt the District in early 1999. Second, Director Williams stated that she "was on top" of any problems within MRDDA and that her plans for moving the agency forward were underway. According to Dong, therefore, he left that meeting feeling confident that Director Williams had a plan in place to move MRDDA forward and that the problems addressed in the article and the briefing were problems of the past. Most importantly, Dong does not recall: (1) being asked to take any specific action with respect to MRDDA; or (2) stating that he would assist with or be responsible for interagency coordination between DHS and other agencies impacting the MR/DD population. Director Williams disputes this account. According to her statements, the meeting took a different course altogether. She stated that it was made clear to Mr. Dong that MRDDA still suffered from many of the problems identified by the Post and contained in the briefing. Furthermore, she stated that it was made clear to Mr. Dong that DHS alone could not fix the problem. The Department of Health, in particular, as well as a number of other agencies had obligations that DHS could not compel them to meet. Thus, according to Director Williams, during this meeting Mr. Dong committed to taking responsibility for interagency coordination on the MRDDA issue. Former DHS Deputy Director Wayne Casey also attended the February meeting with Mr. Dong. His recollection was similar to that of Director Williams. In particular, Mr. Casey noted that: (I) the briefing document was given to Mr. Dong; (2) that Director Williams told Mr. Dong as much as she knew about the issue; and (3) that it would have been hard for anyone to leave the meeting under the impression that this was merely a press issue. According to Casey, Mr. Dong requested that Director Williams provide him with a list of her accomplishments at DHS in order to counter the negative press. Mr. Casey did not have a specific recollection of Mr. Dong taking on the responsibility for interagency coordination. The recollections of Director Williams and Mr. Casey are corroborated somewhat by the statements of Ms. Wharton-Boyd. Ms. Wharton-Boyd recalled that the briefing document was discussed in detail and that there was some discussion of interagency coordination. She could not recall, however, the extent of the discussion of interagency coordination or whether Mr. Dong made any commitment in that regard. Nevertheless, it was her impression that it would have been difficult for anyone in the meeting to conclude either that these were historical problems or that DHS was able to deal with the problems on its own. DHS personnel met with Post reporter Katherine Boo on or about February 24, 1999, in order to discuss the upcoming article. DHS was represented by Mr. Casey, Ms. Wharton-Boyd, Mr. Goode, and others. Director Williams did not attend. Notwithstanding the level of detail contained in the earlier briefing discussed with Mr. Dong, it was at this meeting that DHS personnel learned the full depth and breadth of the issues that would appear in the article. Even at this late date, Mr. Goode and Mr. Casey stated that they were surprised by the level of the allegations of abuse. The first of the Post articles was published on Match 14, 1999. The article found evidence of over 350 instances of abuse, neglect, molestation or stealing in group homes or day programs in the 1990's. The information was pieced together from the records of District agencies and federal and D.C. courts. By happenstance, the Council's Committee on Human Services had an oversight hearing scheduled for March 15, 1999. Mr. Casey testified on behalf of DHS concerning the allegations contained in the article. Among other things, Mr. Casey testified that "these issues require a coordinated and comprehensive interagency response since the responsibility for addressing many of them fall outside the purview of MRDDA and DHS." None of the members of the EOM interviewed by the Special Counsel could remember Mr. Casey's testimony. More importantly, no action was undertaken by anyone within the EOM to bring DHS, DOH and other agencies to the table to discuss the issues addressed in the Post article. Nevertheless, after the March 14 article appeared, Mr. Dong called Director Williams at her home and they spoke concerning homes operated by Washington & Washington, which were prominently featured in the Post article and the February 12 briefing. Mr. Dong contends that he left the February 12 meeting under the impression that either (1) the residents of Washington & Washington had been removed; or (2) there was no longer any threat to health and safety at Washington & Washington. After the article, however, it became apparent to Mr. Dong that there were serious problems with the Washington & Washington group homes. During his conversation with Director Williams, Mr. Dong learned that the residents had not been removed and the threat persisted. According to Mr. Dong, Director Williams told him that DHS did not have the contractual authority to close the homes. Shortly after the March 15 hearing, Mr. Dong directed that the residents be removed without regard to the contractual restrictions.3 C. Other Indications of Problems Within MRDDAThe day after the March 15 Council hearing, Director Williams made a series of requests for third party assistance. She requested that the D.C. Inspector General undertake an investigation into possible abuses within the MRDDA network. She also requested that the United States Department of Health and Human Services conduct an investigation of the MRDDA program and the operation of group homes. Director Williams testified that she informed Mr. Dong of these requests for assistance. In his testimony, Mr. Dong denied having any knowledge of these requests until early 2000. Both the request to the D.C. Inspector General and the request to the federal government, however, were discussed in a front page article in the Washington Post on March 18, 1999.4 In April, 1999, the United States Department of Justice, an intervenor in tote- Evans litigation, began its own investigation. It retained the firm of Tony Records & Associates to conduct a probe into the quality of care received by wards of the District with developmental disabilities. Again, Director Williams and Mr. Dong disagree on whether Mr. Dong was informed about this investigation. But again the existence of the investigation was revealed in a front page Washington Post article on May 4, 1999.5 One area in which Director Williams and Mr. Doug agree is that even prior to publication of the March article they both knew that the Post intended to continue its investigation of problems at the MRDDA group homes. Thus, it was no surprise when a new FOIA request was submitted in June 1999. The June 24, 1999, front burner revealed that the next article would "attempt to expose negligence among MRDDA providers and show a correlation between negligence and the deteriorated health and eventual death of MRDDA customers."6 The front burner also reported that MRDDA had experienced another death on June 23. The front burner mentioned that there was no evidence that this death was suspicious and that an investigation was underway. The June 24 front burner was addressed to Mr. Dong. Mr. Dong recalls reading it but stated that "[M]y understanding was that that was a historical perspective." The fact that the front burner indicated that this new death was under investigation apparently did not change Mr. Dong's assessment that this was a historical problem and not a present problem. DHS experienced significant problems in complying with the FOIA request. These problems primarily were caused by a lack of documentation. The FOIA request sought documents relating to deaths within the MRDDA network, including the Unusual Incident Reports and the documentation relating to the investigations that are required to be conducted by the DHS' Office of Investigations and Compliance. DHS officials soon learned that very few death investigations had been conducted. Moreover, the investigations that were undertaken were cursory, at best, and relied heavily upon the representations of the providers. According to witnesses, part of the lack of documentation was due to confusion in the provider community over where to send Unusual Incident Reports. Intermediate care facilities for the mentally retarded (ICFs-MR) are regulated by the Medicaid program which is administered by the Department of Health. Many of the ICF providers provided notice of death only to DOH, which failed to notify DHS. Thus, DOH had records of deaths of which DHS was unaware. Two weeks after Dong received the June front burner concerning the death investigation, on July 9, 1999, Patrick Dutch, a severely retarded man who lived in one of the District's group homes, died after being left in a van for at least seven hours in 99-degree hems-,The Dutch incident provides a stark illustration of the failure of responsible persons to communicate with one another. The staff at the group home where Dutch lived assumed that he had been dropped off safely at his day program. Day program staff noticed his absence, but assumed that he was at a medical appointment. Neither the group home nor the day program took steps to make certain that Dutch arrived at his proper destination. There is no dispute that the EOM was well aware of the Dutch incident as Mayor Williams was quoted in a Washington Post article concerning the matter. At that time, Mayor Williams indicated that he had ordered MPD, DHS and DOH to investigate the death. The incongruity between DH S and DOH records came to head on August 26, 1999, when Director Williams forwarded to Mr. Dong a memorandum concerning the "Critical Agency Coordination Issue."7 The memorandum addressed the lack of coordination between agencies concerning the release of information in response to the FOIA request. Although the primary topic of the memorandum was the lack of coordinated release of information to the press, the memorandum concluded by stating: "the concern expressed herein is only the 'tip of the iceberg.' It is just one issue reflective of a larger need for greater service delivery coordination among agencies. We must address this issue immediately." While Mr. Dong recalls reading this memorandum he recalls understanding it as only a press issue, notwithstanding the ominous language contained in the final paragraph. During the course of its investigation that began following the March articles, the Justice Department concluded that sixteen wards of the District were at imminent risk of harm. Therefore, on June 3, 1999, the Department issued a letter addressed to Mr. Goode requesting that the District take immediate remedial action on behalf of those wards. Notwithstanding the high level of attention the matter received within DHS, these wards remained in conditions that placed them at risk at least until December 1999, when the consultants informed Justice of the status of follow-up visits. The Department of Justice consultant completed its initial formal report on August 5, 1999.8 The consultant's report detailed a wide variety of instances of neglect, potential abuse, and the district's failure to report deaths and other unusual incidents in accordance with D.C. law and federal court orders. This report was received by officials at DHS and the Office of Corporation Counsel. Although both agencies began working with the Department of Justice and the plaintiffs to address the issues contained in the report, neither agency sent the report to the EOM. Beginning in the spring of 1999, the parties in the Evans litigation began work on what came to be called the "Exit Plan." The Exit Plan process brought together all of the stakeholders in the litigation in a effort to resolve the outstanding issues and get the case out of the court system. The consultant's report became one of the foundational documents for negotiating a final settlement of the litigation. Witness statements during interviews and the testimony of Deputy Mayor Carolyn Graham at the May 22, 2000 hearing indicated that the parties are now close to reaching a final agreement on the Exit Plan. The next critical stage began in November 1999 as the date for publication of the next Post article approached. The Post reporter again met with DHS staff and provided them with a detailed summary of the proposed article, which dealt with the death of residents of the MRDDA group homes. DHS officials drafted another briefing document on or about November 24, 1999.9 This briefing was faxed to Peggy Armstrong, the Mayor's communications officer. The briefing also was distributed to Mr. Dong and Dr. Omer, the Mayor's Chief of Staff., on December 2, 1999. Notwithstanding the very detailed briefing dots, members of the EOM testified that they did not know of the deaths issue until they read the December 5 article. Publication of the December 5, 1999, article caused a firestorm of activity within the government. Council Committee Chairs Sandra Allen (Human Services), Kathleen Patterson (Government Operations) and Harold Brazil (Judiciary) announced a joint hearing would take place on December 20. On or about Sunday, December 12, 1999, more than thirty government officials whose responsibilities involved the MRDDA gathered in the main conference room at the Office of Corporation Counsel to discuss the article and the problems at MRDDA. Witness accounts of this meeting vary significantly. Some believed that the meeting was unproductive and devolved into mere finger-pointing. Other witnesses viewed the meeting as quite productive and informative. Whatever the case, it appears that this meeting was the first meeting in which virtually all of the government offices responsible for the MRDDA group homes met to discuss these matters. The result of the meeting was a strategy for dealing with the upcoming Council hearing concerning MRDDA. Much of the same group of officials met again on or about Friday, December 17, 1999, to review draft testimony in final preparation for the December 20, 1999, Council hearing. In addition to the hearing testimony, two significant projects came out of these meetings. First, as reported at the December hearing, the District established a fatality review program whereby all deaths within the MRDDA system would be subject to investigation. Second, a 90day assessment of MRDDA was ordered by Deputy Mayor Graham. The 90-day assessment was conducted by Chere Calloway, Bob Utiger, and others in the Office of the City Administrator. The scathing report produced at the conclusion of Phase 1 of the assessment found that MRDDA was "highly dysfunctional and unable to execute its mission at its most basic level."10 On January 21, 2000, prior to beginning Phase 2 of the assessment, Ms. Calloway sent a memorandum to Ms. Graham concerning information that she had reviewed during Phase 1.11 In the memorandum, Ms. Calloway stated that she had reviewed documents that indicated that "the Chief of Staff, the City Administrator and Communications Offices received multiple written and possibly oral information" concerning problems within MRDDA. Therefore, Ms. Calloway suggested that someone follow-up on this information to determine: (1) if, in fact, those offices did receive the information; and (2) if so, what those offices did in response to that information. After reviewing the documents provided by Ms. Calloway, Ms. Graham responded in writing on January 31, 2000, that follow-up was not necessary. Ms. Graham explained that her decision was based on two factors. First, Ms. Graham indicated that in her view, the documents did not suggest that those persons had any prior knowledge of MRDDA problems that would warrant such an investigation. Second, in her testimony before the Council on this issue, Ms. Graham indicated that such an investigation was not within the scope of the task with which she was charged. Her responsibility was to fix the agency, regardless of the past acts or omissions of others within the EOM. Notwithstanding the fact that Ms. Graham appears to suggest that discipline was not a concern of hers in this 90-day assessment, on January 19, 2000, she signed the notice of termination to Mr. Goode that was based upon allegations of inaction with respect to MRDDA. In her testimony during the investigative hearing on May 22, 2000, Ms. Graham outlined the current status of efforts to reform MRDDA. The ongoing program reforms, Councilmember Allen stated, will be the subject of continuing oversight by the Council's Committee on Human Services. FINDINGS1. Department of Human Services (DHS)
2. Department of Health (DOH)
3. Office of Inspector General (OIG)
4. Office of Corporation Counsel (OCC)
5. Executive Office of the Mayor
RECOMMENDATIONS1. The Committees recommend that the Mayor reassess his senior management structure which vests agency oversight responsibility in four co-equal deputy mayors and consider engaging an experienced city manager to whom all the deputy mayors and agency heads would report. This would permit the Deputy Mayors to focus on their specific areas of expertise while placing overall responsibility for interagency coordination and communication in the hands of one individual who can be held accountable. A single focus of accountability would address concerns noted by Mayor Williams in his testimony before the Committees on June 1, 2000, concerns noted by Councilmembers, and the factual record that indicates information was not acted on timely and decisively between February and December 1999. Without a single individual reporting to the Mayor and responsible for District operations including interagency coordination, the Committees are concerned that the failures that affected MRDDA in 1999 could be repeated on other problems that emerge in the District. "There are other meteors out there that will be uncovered as we confront a government that has been broken for so long," Mayor Williams stated, referring to issues other than MRDDA. "We have to do a better job of assessing risks and being proactive." 2. The Committees recommend that the Mayor review and if necessary revise the performance contracting process to make clear for agency directors and other senior management officials that a key measure of performance is taking swift and decisive action when threats to life and safety are alleged or apparent. This approach includes the expectation of action by officials who may not be directly responsible for the program at issue but who nevertheless have information pertinent to program operations. Corporation Counsel, as an example, is not directly responsible for MRDDA but was privy to the U.S. Department of Justice letter received in June 1999 and report received in August 1999 detailing specific threats to individuals and should, thus, be held responsible for conveying to the Mayor or the city administrator the urgency of addressing such threats. The goal of this recommendation is to enhance the sense of personal responsibility for job performance on the part of virtually everyone employed in the District workforce, and to make clear that failure to act carries just as high a penalty as taking the wrong action since the consequences can be just as grave. Chief of Staff Abdusalam Omer's May 22, 2000 testimony before the Committees was compelling on this point. He described the December 1999 meeting in the Office of Corporation Counsel during which officials from throughout the government sought to distance themselves from the unreported deaths. "There is a culture in this government, and particularly in MRDDA and DHS," Dr. Omer testified, "where people get paid to do something, but they don't. An inspection is performed in a particular house. Irregularities have been observed. People have been mistreated. But the person fills the form and then puts it somewhere and says, 'I have done my job so, therefore, I have no other obligation' .... I felt at that meeting and a subsequent meeting the next morning a callous disregard for human life." Changing &.e culture of a government in which individuals have not accepted personal responsibility for health and safety of wards of the District is a challenging and critically important goal arising from the MRDDA investigation. 3. The Committees recommend that the Mayor initiate a thorough investigation of all statutory and/or regulatory requirements designed to protect vulnerable wards of the District of Columbia to assess whether the District government is today failing to meet any such statutory and/or regulatory requirements other than those related to MRDDA. Such a review could be undertaken at the Mayor's behest by the Office of the Inspector General. Such a review would encompass but not be limited to such programs and services as licensing foster care homes and child care providers. The Mayor touched on such a review in the wake of the Post articles on MRDDA, including describing his regret that "we acted as information became available, rather than independently." 4. Notwithstanding a request from the Mayor, the Committees recommend that the Inspector General undertake a systematic review -- an audit, inspection, or investigation as deemed appropriate -- of all protections and services provided to vulnerable populations who are wards of the District of Columbia. This review would provide assurance that the threats to life and health of MRDDA customers demonstrated in the Washington Post articles were unique and historical and not typical of District government services. 5. The Committees recommend that the Office of Corporation Counsel adhere to policies and procedures that assure that officials within the agencies and senior officials within the Executive Office of the Mayor are aware of issues that arise in litigation when those issues require immediate attention as a matter of policy. The Office of Corporation Counsel (like DHS) received information on threats to individual wards of the District but did not sound the alarm in such a manner that the threat was immediately alleviated. Actions such as the U.S. Department of Justice investigation of potential abuse and neglect in the MRDDA system warrant broader policy review and response than can be provided by a single trial lawyer assigned to a litigation matter. 6. The Committees recommend that the Mayor give the highest priority to securing the approval of the District Medicaid waiver for home and community-based care. The Committees also request that the Department of Health report to the Committee on Human Services when the waiver is completed and the scope of services subject to the waiver. 7. The Committees recommend that the Council and its Committee on Human Services continue aggressive oversight on reform of services to persons with mental retardation and developmental disabilities. In particular, the Committees understand that the Evans parties are close to an agreement on the Exit Plan. The Council's Committee on Human Services is urged to periodically take sworn testimony from the responsible agencies concerning the District's compliance with the Exit Plan. 8. More broadly, the Committees recommend that the Council develop ongoing staff capacity to conduct investigations as warranted by developing circumstances. While the Council has strengthened its own oversight operations in recent years, the capacity to conduct investigations is a further way to assure effective implementation of laws and to go behind what may prove to be incomplete information provided through the heating process. Council investigative capacity can be developed within Committee operations, within a central staff function, or through efforts coordinated with the District of Columbia Auditor. 9. The Committees recommend that the District's regulations be amended to require MRDDA to assure that a physician capable of detecting neglect and abuse within the MR/DD population be available for consultation with MRDDA case managers and DOH inspectors at all times. Although Dr. Walks testified that a written agreement is in place that provides DOH inspectors with access to physicians, the Committees find that a properly executed regulation offers the best prospect of ensuring that the health. and safety concerns of the MR/DD population are met. 1. See Appendix at ____. |
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