Urgent Memo on Proposed DEEC Regulations

Memorandum

Executive Summary

Proposed changes to Department of Early Education and Care (DEEC) regulations 606 CMR 3.02 would replace the term resident with child for all individuals served in DEEC-licensed residential programs. This terminological change effectively reclassifies adults with disabilities aged 18–21 as “children.” By doing so, the regulations explicitly segregate adults based solely on disability (p. 3, line 22) in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and Olmstead v. L.C., 527 U.S. 581, 597 (1999).

Under Massachusetts law, any limitation on an adult’s autonomy must be based on individualized judicial findings under the guardianship statute, M.G.L. c. 190B, and must be narrowly tailored. The proposed regulations exceed that authority and improperly deny adults their lawful legal status.

Background: The Guild for Human Services

Founded in 1947 and incorporated in 1952, The Guild for Human Services’ mission is to educate, encourage, and empower individuals with intellectual disabilities so they may achieve their full potential and participate meaningfully in society.

The Guild operates:

• a private, 365-day special education school serving 90 students;
• nine community-based group homes licensed by DEEC; and
• fifteen residential homes licensed by Massachusetts Department of Developmental Services (DDS).

The Guild’s vision is to ensure that individuals with intellectual disabilities experience quality of life, including material and emotional well-being; rich relationships and social inclusion; personal development and fulfillment; self-determination; empowerment; and protection of rights.

Historically, these rights were limited based upon the English common-law myth that adults with disabilities were “perpetual children” subject to the state’s parens patriae power. Since the 1970s, constitutional litigation, civil-rights statutes, and modern guardianship law have repudiated this framework. It is in this context that The Guild submits public comment to express deep concern: the proposed regulations attempt to reinstate an unlawful and discriminatory infantilization of adults with disabilities.

Violations of Legal Hierarchy

ADA and Olmstead Violations

The ADA prohibits unjustified segregation, excessive supervision, and categorical assumptions about incapacity. Under Olmstead, treating adults with disabilities as children constitutes segregation rooted in disability and violates Title II.

Section 3.02 of the proposed regulations would classify adults aged 18–21 as “children,” explicitly segregating them by reason of disability. This violates the ADA and Olmstead’s requirement that disability-based distinctions be justified, individualized, and the least restrictive available.

The discriminatory nature of this approach is further illustrated by contrast: the regulations define a “young parent” as an individual as young as 13 who resides with their own child. This demonstrates that DEEC is fully capable of distinguishing minors from adults—yet declines to do so for adults with disabilities.

Violations of Massachusetts Law

The proposed regulations grant “placement agencies” decision-making authority over adults with disabilities without any requirement of a court order. This directly contradicts:

• Massachusetts Guardianship Law, M.G.L. c. 190B;
• Rogers v. Commissioner of DMH, 390 Mass. 489 (1983);
• IDEA regulations, 34 C.F.R. § 300.520; and
• Massachusetts Special Education Regulations, 603 CMR 28.

Under Massachusetts law, an adult’s rights can be limited only through an individualized judicial determination of incapacity. Broad, categorical, or agency-driven substituted decision-making, particularly parental default authority beyond age 18, is impermissible.

The proposed regulations must be amended to recognize the legal autonomy and adult status of individuals aged 18 and older served in DEEC-licensed programs.

Reference Materials: Federal Laws and Precedents

Olmstead v. L.C., 527 U.S. 581 (1999)

The Supreme Court held that unnecessary segregation or infantilizing custodial practices violate the ADA. Olmstead fundamentally rejects the historical assumption that disabled adults require childlike supervision.

Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.

The ADA prohibits discrimination and requires that all programs and services respect the autonomy of individuals with disabilities. Infantilizing practices, including unnecessary paternalistic control, can constitute discriminatory interference with the “equal enjoyment” of public services.

Rehabilitation Act § 504, 29 U.S.C. § 794

Section 504 bars disability-based discrimination by entities receiving federal funds. Denying adults the right to make their own educational or programmatic choices because of disability is a prohibited exclusion or segregation.

Individuals with Disabilities Education Act (IDEA) 34 C.F.R. § 300.520.

At age 18, all educational rights transfer to the student, unless a court determines otherwise. This transfer of rights is an explicit statutory repudiation of automatic parental control over adults with disabilities.

Reference Materials: Massachusetts’ Laws and Precedents

Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728 (1977)

Saikewicz held that adults with profound disabilities cannot be treated as perpetual children and retain the same constitutional rights as others.

Rogers v. Commissioner of DMH, 390 Mass. 489 (1983)

Rogers reaffirmed that institutionalization does not diminish an adult’s constitutional rights and that substituted decision-making must be strictly limited.

Guardianship of Roe, 411 Mass. 666 (1992)

Guardianship of Roe confirmed that autonomy cannot be overridden absent clear and specific judicial findings of incapacity. Moreover, Roe clarified that guardianship authority is limited and must be individualized and tied to the adult’s preferences and values.

MA Special Education Regulations: 603 CMR 28

At age 18, the student, not the parent, has full decision-making authority regarding special education services, absent limited statutory exceptions.

Guardianship Law: MGL c. 190B

M.G.L. c. 190B § 5A-102 defines “adult” as “an individual who has attained 18 years of age.” Under M.G.L. c. 190B, § 5-309, a guardian’s authority is limited: a guardian should make decisions only to the extent necessitated by the person’s mental/adaptive limitations.

Amy C. Sousa, PhD, MSc, MHCDS

Chief Executive Officer