Judge Losing Patience With RI in Disabilities Case

Federal court building on Kennedy Plaza in Providence, RI

By Gina Macris

An increasingly impatient federal judge warned March 14 that unless the state of Rhode Island shows progress soon in complying with terms of the so-called “sheltered workshop” consent decree of 2014, he is likely to impose sanctions.

 “To say I’m frustrated with the lack of progress is an understatement,” said Judge John J. McConnell, Jr.

“I’m not going to allow much procedural rollout before they (the state) will be sanctioned for non-compliance,” he said.  He did not elaborate.

The chief issue is a lack of money to implement the supports necessary to help people with developmental disabilities gain employment and participate in other non-work activities in their communities, as required by the consent decree.

The decree affects a total of about3,600 Rhode Island residents with disabilities, many of whom had been in sheltered workshops making sub-minimum wages in violation of Title II of the Americans with Disabilities Act. The requirements of Title II were spelled out in 1999 in a landmark U.S. Supreme Court decision entitled Olmstead v. L.C.

McConnell asked the lawyer for the U.S. Department of Justice (DOJ), Nicole Kovite Zeitler, why the DOJ had not already filed a contempt motion. 

Zeitler noted that at the previous status conference Jan. 26, the judge had indicated a willingness to work with both sides on cooperative measures short of contempt.

McConnell’s question also prompted a discussion ofshort-term deadlines the judge already has put in place that could lead up to a contempt finding if the state misses them.                                                                                                                       

By April 1, the state is to submit a status report on compliance that reflects a coordinated effort among the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH), the Rhode Island Department ofEducation (RIDE), and the Office of Rehabilitative Services of the Department of Human Services (ORS).  The report is intended to help the judge evaluate compliance.

On April 8, the heads of the three agencies, as well as the director of the state’s Office of Management and Budget (OMB), are to appear in court to produce evidence of compliance in a formal hearing.  If, after hearing the evidence, the judge finds the state must take additional steps, he will issue an order listing remedial actions.

DeSisto and DOJ lawyers originally proposed the compliance report be submitted by April 11 and the hearing be held April 18, but McConnell has moved each of those deadlines up by ten days.

Among other things, the latest order requires the state to present evidence that there is a defined budget for implementation of the consent decree that can link expenditures to results for specific individuals.

The court monitor for the case, Charles Moseley, who spoke by a telephone hookup to the hearing, said that while employment placements have increased, it appears those results have been achieved by community-based agencies acting independently of the consent decree. 

“The persons who have been placed have not been placed as a result of the budget but in spite of the budget,” Moseley said.

Like the judge, Moseley, Zeitler, and DeSisto each expressed their frustration with the lack of system-wide progress in implementing the consent decree, which has specific requirements and deadlines. 

Compliance is likely to come “late and piecemeal instead of on deadline,” said the DOJ’s Zeitler.

For example, she said, the consent decree required the state and the Providence School Department to help secure employmentbyJuly 1, 2015, of a total of  50 recent high school graduates who received special education. But so far, only 21 of them have been placed – less than half.

“Right now, we are at a bit of a crossroads,” Zeitler said.

The one bright spot cited during the hearing was appointment of Mary Madden as the secretary-level coordinator of the consent decree, with authority over the state agencies responsible for implementing its requirements. Madden was appointed at the end of January by Rhode Island Health and Human Services Secretary Elizabeth Roberts. Madden serves in an acting capacity.

 “I have a little ray of hope” that she’ll bring leadership to the state’s efforts, McConnell said.

Madden “in a short period of time has jumped into this,” Moseley said.

Madden, well known in the developmental disability community, is a policy fellow at the Paul V. Sherlock Center on Disabilities at Rhode Island College, where she has conducted research on public policy issues such as inclusion, employment, self-determination, and the design of systems of care and support.

A seasoned administrator with 30 years’ experience, she was president and CEO of the J. Arthur Trudeau Memorial Center from 2003 to 2012 and executive director of the Ocean State Association of Residential Resources from 1987 to 2003.

Madden is also owner of M-CUBED Consulting in Narragansett, which helps non-profit developmental disabilities organizations with strategic planning, program design, and team building.