Incarcerated Deaf and Hard-Of-Hearing People Win Access to Life-Saving Fire Alarms and Other Emergency Notifications

FOR IMMEDIATE RELEASE:

BOSTON – January 23, 2024 – In a long-awaited victory, incarcerated people who are deaf or hard of hearing will receive life-saving emergency notifications in Massachusetts correctional facilities.

Following eight years of litigation culminating in a trial in August, United States District Court Judge Richard G. Stearns ruled that the Massachusetts Department of Correction’s (DOC) violated the Americans with Disabilities Act and the Rehabilitation Act by failing to provide an effective emergency alarm system and evacuation procedures for people in custody who are deaf or hard of hearing.

“It doesn’t just impact me. It impacts the whole population here. You have elderly people, people with other disabilities, officers – an evacuation procedure that works for all of us sends the message that we all matter,” said Daniel McNair, an incarcerated person and trial witness for the case.

The case is entitled Briggs, et al. v. Department of Correction, et al. The plaintiffs, represented by

Prisoners’ Legal Services of Massachusetts, Disability Law Center, Washington Lawyers’ Committee for Civil Rights and Urban Affairs, and WilmerHale, argued that because many housing units and common areas in DOC facilities rely exclusively on audible alarms, deaf and hard-of-hearing individuals face a significant risk of death or serious injury because of their inability to hear safety announcements and fire alarms. Multiple class members testified at the trial about instances when they were left behind in their cells or did not evacuate promptly during fire drills because they did not hear the alarm.

“This ruling sends a clear message that disability rights do not stop at the prison gates. For far too long, DOC failed to meet its basic legal obligations to ensure equal access to emergency notifications and alarms for deaf and hard-of-hearing prisoners. Today’s decision is an important win for incarcerated people with disabilities,” said Lisa Pirozzolo, Partner at WilmerHale.

“In combination with the wide-ranging 2019 settlement in this case, the Court’s decision makes clear that DOC must provide people who are Deaf or hard-of-hearing access to effective communication, programming, and other services, including life-saving emergency notifications. We are grateful to our clients for their resolve and hope that the ruling serves as a reminder that individuals with disabilities are entitled to reasonable accommodations from all Commonwealth agencies,” said Tatum A. Pritchard, Director of Litigation at the Disability Law Center.

Experts presented by the plaintiffs confirmed that there are many effective means of emergency notification—including visual alarms like strobe lights and tactile alerts—that could serve as appropriate accommodations for deaf and hard-of-hearing people. After years of review and discussion, even DOC officials have acknowledged the “system wide” need for such accommodations.

“We are thrilled that incarcerated deaf and hard-of-hearing people have secured accommodations for their disabilities,” said Kaitlin Banner, Deputy Legal Director at Washington Lawyers’ Committee for Civil Rights and Urban Affairs. “However, it’s disappointing that it required a lawsuit to ensure that people in Massachusetts are guaranteed their right to safety. Massachusetts was not the first state that we’ve fought for access to emergency alarms, but we hope it will be the last state where such a suit is necessary.”

In its ruling, the court ordered the DOC to develop comprehensive policies for each prison to ensure that deaf and hard-of-hearing prisoners can finally receive lifesaving emergency notifications on equal terms with people who do not have disabilities. The court recognized that anything less would subject these incarcerated people to unacceptable risks to their safety and well-being in violation of federal law.

“Deaf and hard-of-hearing prisoners in Massachusetts have been left in their cells during emergencies because DOC has unlawfully refused to provide reasonable accommodations to protect them from dying in a fire. This ruling confirms what we have argued all along – that visual alarms are necessary to protect the health and safety of these individuals and allow them equal access to emergency notifications. I want to thank our clients for their courage and perseverance in this long fight to achieve justice,” said James Pingeon, Litigation Director at Prisoners Legal Services.

The DOC will have until May 16, 2024, to propose a comprehensive policy that provides effective emergency alerts to all deaf and hard of hearing incarcerated people. After plaintiffs have a chance to review and comment, the policy will be submitted to the court for final review and approval.

The alarm system and evacuation plan were the remaining claims not addressed by a comprehensive settlement agreement approved by the court in 2019 in the Briggs litigation. That settlement remedied a wide range of issues faced by incarcerated people with hearing disabilities, including access to hearing aids and sign language interpreters, videophones and captioned telephones, and discrimination in workplace assignments. DOC’s compliance with the terms of that settlement agreement is still being monitored by the court.

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For more information, contact Prisoners’ Legal Services of Massachusetts Communications Director Aaron Steinberg at asteinberg@plsma.org.

DLC Report Exposes Practice of Diverting Millions Annually of SSA Benefits from Vulnerable Foster Youth in Massachusetts

FOR IMMEDIATE RELEASE

Contact: Rick Glassman

rglassman@dlc-ma.org

DLC Report Exposes Practice of Diverting Millions Annually of SSA Benefits from Vulnerable Foster Youth in Massachusetts

Investigation reveals systemic issues in DCF’s allocation of Social Security benefits

BOSTON, MA (September 26, 2023): In a comprehensive report released today, Disability Law Center, Inc. (DLC), sheds light on a concerning practice within the Massachusetts Department of Children and Families (DCF) that impacts some of the state’s most vulnerable children and young adults. The report, based on extensive research and data analysis, highlights the diversion of millions of dollars in Social Security Administration (SSA) benefits from children in foster care to the state’s General Fund, potentially robbing these already disadvantaged young adults of a brighter future.

The report can be found below.

The report comes immediately ahead of a hearing today of the Joint Committee on Children, Families, and Persons with Disabilities on legislation (H.157 / S.65) to end this practice and protect the benefits of youth in foster care. DLC will testify at the hearing.

DCF acts as the representative payee for approximately 1,250 children in foster care who are eligible to receive SSA benefits each month, either due to their own disability or based on a parent’s wage-earning record, specifically because their parents have retired, become disabled, or passed away. Instead of passing these funds onto the children or their foster families, or holding them in escrow for when they age-out of the system at age 21, DCF redirects a staggering 90% of these funds – totaling approximately $450,000 to $500,000 a month – into the state’s General Fund. Many of these children are unaware that they are eligible for SSA benefits, further compounding the issue. Annually, around $5.5 million in SSA benefits meant for these vulnerable youth is funneled away for the state’s own use, rather than being allocated for their care and future prospects. The practice disproportionately affects BIPOC and LGBTQ+ youth, who are overrepresented in the foster care system and more likely to experience disability.

The report highlights statistics that underscore the challenges faced by transition-age youth (age 21) in Massachusetts foster care:
40% lack stable housing;

  • 74% are not enrolled in post-secondary education;
  • 32% have not obtained a high school diploma;
  • 46% do not have part- or full-time employment;
  • 23% have experienced incarceration; and
  • 18% are parents.

“The report we’ve released today underscores a critical point: these SSA benefits, meant to provide a safety net for the most vulnerable among us, are not being directed toward the betterment of foster care services or the well-being of these children. Instead, they are siphoned away, exacerbating the challenges these youth face as they navigate a complex and often unforgiving system,” said Barbara L’Italien, Executive Director of DLC, the Commonwealth’s Protection and Advocacy (P&A) system and a nonprofit organization advocating for human rights, empowerment, and justice for people with disabilities. “The practice not only raises serious ethical concerns but also fails to align with the core principles of justice and equity that should guide our approach to child welfare. It’s high time for a reevaluation of DCF’s policies.”

Rick Glassman, the lead author of the report and DLC’s Director of Advocacy, said the diversion of these funds is not only a public policy issue, it’s a moral one. “The amount of money is meaningless to a state with a $55 billion budget and an approximately $7.2 billion reserve fund. But to a young adult aging out of foster care, it can mean the difference between a transition to independence and life on the streets.”

The report highlights recommendations for reform within DCF to protect vulnerable youth in the foster care system. Similar policies in other states have been subjected to widespread criticism from national media, and as a result many states have adopted or introduced new policies or legislation to help young people conserve these benefits for adulthood.

“We must ensure that young adults, as they age out of foster care here in Massachusetts, have access to the social security benefits to which they are entitled to jumpstart their financial independence as they transition,” said Senator Jo Comerford (D-Northampton). “I am proud to sponsor a bill that would ensure these benefits are protected for youth in foster care, and would require DCF to provide financial literacy training to these individuals. Grateful for my partnership with Representative Tricia Farley-Bouvier, the Disability Law Center, and the Committee for Public Counsel Services.”

Amy Karp, an attorney at the Committee for Public Counsel Services, which represents children and young adults in foster care, said “these bills will protect some of our most vulnerable clients, those who leave DCF without a permanent connection to parents, family or community. If we permit children in foster care to retain the federal benefits to which they are legally entitled, we can change the trajectory of their lives.  No youth should leave foster care to live on the streets.”

Other key recommendations include ending the practice of diverting SSA benefits from these children, safeguarding their assets for future independence, implementing universal screening to determine eligibility for adult SSA benefits, transparently notifying children and their guardians when DCF becomes their representative payee, and proactively seeking responsible family members or supporters to manage benefits where possible.

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Disability Law Center Again Recommends Transfer of Oversight of Bridgewater State Hospital to the Department of Mental Health Due to Continuing Health and Safety Risks and Rights Violations

FOR IMMEDIATE RELEASE

August 1, 2023

Contact:
Tatum A. Pritchard
Director of Litigation
Disability Law Center
617-315-4612
tpritchard@dlc-ma.org

Disability Law Center Again Recommends Transfer of Oversight of Bridgewater State Hospital to the Department of Mental Health Due to Continuing Health and Safety Risks and Rights Violations

Boston, MA – The Disability Law Center (DLC) has issued its July 2023 report detailing findings and recommendations from its intensive monitoring activities at Bridgewater State Hospital (BSH), including the Bridgewater Annex Units at Old Colony Correctional Center.

DLC covers an array of topics in the report, all of which indicate that health and safety risks and serious rights violations abound at the Department of Correction (DOC) facility run by contractor Wellpath, despite recent reform efforts. For example, DLC finds that: incomplete efforts to address the presence of mold and stifling conditions in housing unit cells leave BSH Persons Served at risk; BSH Persons Served continue to be subjected to violent interventions and illegal chemical and physical restraint and seclusion practices; and access to medical care for many BSH Persons Served remains inadequate. In examining continuity of care issues for current and former Persons Served, DLC discusses impediments to timely and successful transfers to DMH facilities and Mental Health Watch practices in several county correctional facilities.

After almost a decade of monitoring, DLC again urgently calls on the Commonwealth to transfer oversight of the BSH population to the Department of Mental Health (DMH) and to construct a new psychiatric hospital. While DLC offers several interim recommendations to address immediate needs and interests of Persons Served, the report emphasizes that protecting the health, safety, and rights of those with complex mental health needs and disabilities who are involuntarily committed to BSH can only be accomplished with a transfer of power and closure of the infamous facility.

”DLC’s long-term monitoring efforts, supported by Line Item #8900-0001, provide critical insight into the conditions and treatment offered to individuals with complex mental health needs behind the walls of Bridgewater State Hospital. DLC welcomes the bond money now appropriated by the Governor to complete a study of the development a new hospital and urges the state to prioritize the overdue shift from a correctional model to a therapeutic mental health approach overseen by the Department of Mental Health.” Barbara A L’Italien, Executive Director, DLC.

As Massachusetts’ designated Protection and Advocacy, DLC is authorized under federal law to investigate incidents of abuse, neglect, and death of individuals with disabilities throughout the Commonwealth. Line Item #8900-0001 of the FY 2023 Budget provides DLC funding and enhanced legislative authority to monitor the efficacy of service delivery reforms, physical plant, and continuity of care at BSH.

 

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Disability Law Center Investigation Finds Neglect in Cancer-Related Death of an Individual Involuntarily Committed to Lemuel Shattuck Hospital

FOR IMMEDIATE RELEASE

May 8, 2023

Contact:
Tatum A. Pritchard
Director of Litigation
Disability Law Center
617-315-4612
tpritchard@dlc-ma.org

Disability Law Center Investigation Finds Neglect in Cancer-Related Death of an Individual Involuntarily Committed to Lemuel Shattuck Hospital

Boston, MA – The Disability Law Center (DLC) issued a public report today outlining findings of neglect and recommendations concerning the death from cancer of an individual with mental health disabilities who was involuntarily committed to the Metro Boston Mental Health Units at the Lemuel Shattuck Hospital (LSH). As the designated Protection and Advocacy agency for Massachusetts, DLC is authorized under federal law to investigate incidents of abuse, neglect, and death of individuals with disabilities throughout the Commonwealth.

The report discusses the experience of Mr. Harris (a pseudonym), a Black man from Boston diagnosed with schizoaffective disorder, who developed a cancerous lesion on his nose that was not properly diagnosed or treated for more than a year and a half while he was inpatient at LSH. As part of the investigation, DLC’s medical expert concluded that Mr. Harris would have had a high chance of survival had his cancer been treated promptly at or soon after his initial presentation. Unfortunately, LSH provided Mr. Harris medical treatment that failed to comport with the standard of care in a several ways, including by failing to diagnose through biopsy and appropriately treat his lesion; failing to ensure that Mr. Harris received a timely surgical referral to remove the lesion; and failing to obtain informed consent for Mr. Harris’ treatments from his legal guardian, despite medical records indicating that Mr. Harris did not have the ability to provide such consent.

DLC provided LSH, the Department of Public Health, and the Department of Mental Health its initial findings and recommendations for corrective action in 2022. DLC also gave these entities an advance copy of the public report prior to its release. In response to DLC’s findings, LSH conducted a thorough review and ultimately implemented key changes aimed at improving care for LSH patients, including: requiring LSH dermatology staff to photograph skin lesions and wounds for the medical record; requiring biopsies on “all conditions identified as ‘lesion,’ ‘growth’ [or] ‘suspicion of skin malignancy’ prior to initiating treatment; and developing new formal processes and practices to ensure better communication between LSH providers.

DLC recognizes the importance of the corrective action LSH has taken and the many changes in LSH administration since the time of Mr. Harris’ death but believes that more must be done to address the lack of or unequal access to quality medical care that people with mental health disabilities experience every day in our Commonwealth. ”Mr. Harris’ death is a tragic example of what can happen when a health care system fails to be attentive and accommodate the medical needs of a vulnerable individual – an example made worse by the fact that he was institutionalized at LSH to protect him from harm based on to the severity of his mental health disability,” stated Barbara L’Italien, Executive Director of the Disability Law Center.  As discussed in the report, it is well-established that many individuals with mental health disabilities experience poor health outcomes and unequal access to health care. Compounding these experiences are the institutional racism in U.S. health care delivery systems and pervasive health disparities for communities of color, women, people who identify as LGBTQIA+, people with Limited English Proficiency, people with low incomes, and people with other disabilities. While the Commonwealth continues to make efforts to improve health equity, barriers persist and must be dismantled, especially in public hospitals like LSH.

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Disability Law Center Finds Continuing Systemic Rights Violations and Health and Safety Risks at Bridgewater State Hospital

FOR IMMEDIATE RELEASE

February 1, 2023

Contact:
Tatum A. Pritchard
Director of Litigation
Disability Law Center
617-315-4612
tpritchard@dlc-ma.org

Disability Law Center Finds Continuing Systemic Rights Violations and Health and Safety Risks at Bridgewater State Hospital

Boston, MA – The Disability Law Center (DLC) has issued our January 2023 public report summarizing findings and recommendations arising out of intensive monitoring efforts at Bridgewater State Hospital (BSH) from July 2022 through December 2022. The report examines both continuing and new concerns discovered during this reporting period related to facility conditions and BSH policies and practices that negatively impact the rights, health, and safety of BSH Persons Served.

Among the topics discussed is the continuing widespread presence of mold growth throughout BSH, as confirmed by DLC’s expert, despite the costly mold remediation and asbestos abatement efforts the Department of Correction undertook in response to DLC’s 2022 reports. The presence of environmental toxins, in combination with sanitation issues, vermin infestation, recurring power outages, and ineffective heat mitigation efforts during the summer months, put Persons Served at risk. In addition, systemic violations of Massachusetts law regarding chemical and physical restraint and seclusion persist at BSH, resulting in foreseeable physical and psychological harm to Persons Served. Likewise, inadequate language access for individuals with Limited English Proficiency and many impediments to successful continuity of care following discharge from BSH remain unchanged.

DLC’s report also raises two new issues related to treatment of BSH Persons Served. First, information DLC gathered during this reporting period indicates that access to treatment for individuals with substance use disorder is insufficient and BSH providers may be inappropriately tapering and terminating access to Medication Assisted Treatment. Second, DLC presents serious concerns about BSH’s introduction of an “atypical antipsychotic” taken via inhalation as a treatment option for Persons Served, despite the medication’s association with increased risk of bronchospasm and contradictions for people with respiratory conditions and aging individuals with dementia.

In the report, DLC provides sweeping recommendations for addressing the issues examined. Ultimately, however, in keeping with past reports, DLC concludes that protecting PS – people with complex mental health needs who are forced to submit to evaluation and treatment at BSH – requires that the Commonwealth transfer oversight of the population to the Department of Mental Health and commit to building a new hospital.

”DLC’s intensive, long-term monitoring efforts, made possible through the support and expanded authority granted by Line Item #8900-0001, provide unique and critical insight into the treatment of people with complex mental health needs at Bridgewater State Hospital. With the new administration comes a renewed request to prioritize the overdue shift from a correctional model to a therapeutic mental health approach overseen by the Department of Mental Health.” Barbara A L’Italien, Executive Director, DLC.

As the designated Protection and Advocacy agency for Massachusetts, DLC is authorized under federal law to investigate incidents of abuse, neglect, and death of individuals with disabilities throughout the Commonwealth. Line Item #8900-0001 of the FY 2023 Budget provides DLC funding and enhanced legislative authority to monitor the efficacy of service delivery reforms, physical plant, and continuity of care at BSH.

###

Read the Report

 

 

Disability Law Center Again Calls for Bridgewater State Hospital Reform on the Basis of Serious Concerns About Facility Conditions and Rights Violations

FOR IMMEDIATE RELEASE

July 29, 2022

Contact:
Tatum A. Pritchard
Director of Litigation
Disability Law Center
617-315-4612
tpritchard@dlc-ma.org

Disability Law Center Again Calls for Bridgewater State Hospital Reform on the Basis of Serious Concerns About Facility Conditions and Rights Violations

Boston, MA – The Disability Law Center (DLC) has issued a public report today summarizing findings and recommendations arising out of intensive monitoring efforts at Bridgewater State Hospital (BSH) from January 2022 through June 2022. DLC’s intensive ongoing monitoring of BSH would not be possible without the support and expanded monitoring authority granted by Line Item #8900-0001.

In the report, DLC highlights serious concerns about conditions and practices that negatively impact the rights, health, and safety of BSH Persons Served (PS), including: lack of clarity from the Department of Correction (DOC) regarding the status of remediation of widespread mold confirmed by DLC’s expert in the last reporting period; continuing illegal chemical and physical restraint and seclusion practices; and inadequate language access for PS with limited English proficiency. DLC also discusses deficiencies in discharge planning, information sharing, and continuity of care for PS discharged to county correctional facilities, Department of Mental Health (DMH) hospitals, and other DOC facilities.

DLC’s sweeping recommendations include calls for the following reform:

  • DOC must remediate mold and complete asbestos abatement throughout BSH and provide detailed information evidencing that: DOC has conducted mold remediation and asbestos abatement in all areas identified by experts in keeping with industry standards; and DOC has conducted air quality testing and lab testing of surface swab indicating that remediation and abatement efforts were successful.
  • The Commonwealth must immediately place under the authority of DMH operations of BSH and the care of all individuals found by a court to need “strict security” for psychiatric evaluation and treatment.
  • The Commonwealth must commit to closing BSH and commit to constructing a modern DMH facility designed to provide psychiatric evaluations and treatment in a safe, therapeutic environment.
  • DOC, and its contractor, Wellpath, 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 M.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.
  • DLC strongly recommends that BSH and DMH commit to tracking and analyzing race/ethnicity data concerning application of restraint and seclusion – including ETOs at BSH – on individuals who are subject to psychiatric hospitalization in the Commonwealth.
  • DOC must ensure that Wellpath takes steps to ensure universal access to BSH programs and services for PS with limited English proficiency through implementation of established Language Access Plan requirements.
  • DOC and Wellpath must provide more than one avenue for PS to access medical services to ensure that the process is accessible to all PS, including PS with LEP and PS with disabilities that impact their communication abilities.
  • DOC and Wellpath must improve access to mental health clinicians and therapeutic programming in the Intensive Stabilization and Observation Unit  (ISOU) to break the cycle of self-harm, ISOU evaluation, discharge and repeat for prisoners with serious behavioral health conditions deemed to not meet the commitment standard.
  • The Commonwealth should commit DMH resources to further DMH engagement with all county correctional facilities to enhance access to mental health care for all county prisoners, including recently discharged BSH PS.

“The critical monitoring that DLC does at Bridgewater underscores the need to recognize human rights and support the intensive service needs of people challenged with behavioral health conditions. Eight years into this work, we maintain the critical need to shift from a correctional to a therapeutic mental health model under the Department of Mental Health.” Barbara A L’Italien, Executive Director, DLC.

Since its investigation into the use of excessive use of restraint and seclusion at BSH that began eight years ago, DLC has implored the Commonwealth to place facility operations under the authority of DMH and construct a modern DMH facility to meet the needs of the population.

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. Line Item #8900-0001 provides funding and enhanced legislative authority to monitor the efficacy of service delivery reforms, physical plant, and continuity of care at BSH.

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Read the Report


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Questions And Answers About The Wheelchair Repair Bill, S. 2567

BICIL, DPC and DLC

 

 

 

 


  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]

  1. 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.
  1. 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. 

  1. 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. 
  1. 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. 
  1. 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]

  1. 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.
  1. 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.
  1. 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. 
  1. 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.”
  1. 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. 
  1. 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.

  1. 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).
  1. 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] 
  1. 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.

 

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 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 Announces New Executive Director

Barbara L'ItalienThe 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.”

Wheelchair Repair

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.