Rhode Island Federal Judge Holds First Hearing on Olmstead Consent Decree

By Gina Macris

PROVIDENCE _Without added funding for adults with developmental disabilities, Rhode Island will continue to segregate them in violation of the Americans with Disabilities Act, a lawyer for the U.S. Justice Department told U.S. District Court Judge John J. McConnell on Tuesday.

McConnell listened to reports on the implementation of a 2014 consent decree requiring the state to shift an estimated 3,000 people with intellectual disabilities into community-based employment and daytime activities by 2024. 

The Justice Department lawyer, Victoria Thomas, and a Court monitor, Charles Moseley, each noted some early progress in implementation but said the state had failed to keep up with interim steps necessary to achieve the long-range goal in a decade’s time.

McConnell said it is "disturbing" that members of a “vulnerable population” are not receiving services to which the law entitles them. 

Alluding to possible contempt proceedings, he said the “Court will not be shy to use the powers vested in it” to enforce the consent decree, but he emphasized that he hoped process might be avoided.

Jennifer Wood, deputy secretary and chief legal counselfor the Executive Office of Health and Human Services,  suggested that the state’s path toward implementation might be clearer after Governor Gina Raimondo announces her budget proposal next week.

She said officials of the state budget office and the central agency for implementation, the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH), have met “dozens of times” in the last six months to discuss fiscal issues.

McConnellsaid, “Are you saying we may be a week early, but the consent order has been central to the budget deliberations?”

Wood said,  “We have specific commitments” to change the funding structure.  She called the forthcoming budget proposal “a game changer.”

Thomas said the Justice Department’s main concern was to hear specific details of plans to improve services.

Budget proposals aside, she said, she also wanted to know whether BHDDH is making changes that do not depend on funding.

Mosely urged BHDDH and other agencies responsible for providing services to build relationships with people with disabilities, their families, and businesses that might offer employment, as required by the2014 statewide agreement, as well as a 2013 decree affecting Providence high school students.

“I hear the families don’t feel they’re involved,” he said.

A lawyer for the state, Mark DeSisto, said the 2013 and 2014 agreements,  represent “models for the nation,” and “a cultural change.”

“There’s a lot to this, a lot to go forward on,” he said.

He encouraged McConnell to become involved in an informal way in guiding the implementation of the two agreements.

McConnell agreed. The way he read the order, he said, “In dealing with vulnerable populations the Court can get involved more than making an order, and clearly should.”

“It’s a balancing act between enforcing the decree and ensuring the protection of vulnerable populations,” he said, “getting practical about it but not using the hammer.”

McConnell said he would hear status reports in open court every three months

The 2013 and 2014 consent decrees resulted from an investigation of the Civil Rights division of the U.S. Department of Justice, which concluded that that segregating Rhode Island residents with developmental disabilities in sheltered workshops violated the so-called Olmstead decision of the U.S. Supreme Court and the Americans with Disabilities Act.

In 1999, the High Court ruled that the state of Georgia violated the ADA by keeping two developmentally disabled women in an institutional setting against their wishes.