Federal Court Hearing Sept. 16 Could Test RI's Compliance With DD Consent Decree

By Gina Macris

The status of Rhode Island’s compliance with a federal consent decree mandating integration of adults with intellectual and developmental disabilities is scheduled to go before U.S. District Court Judge John J. McConnell, Jr., on Sept. 16.

In response to McConnell’s active involvement in the case, which began in January, high-ranking state officials have begun an intense effort to lay the groundwork for compliance with the consent decree, which was signed in April, 2014.

On May 18 of this year, McConnell issued an order that held the state to numerous deadlines in July and August.

Whether the state has made sufficient progress over the summer may become clear during the upcoming review of the case in open court.

Prior to the Sept. 16 court session, the U.S. Department of Justice  and the independent court monitor can be expected to file written reports with the judge on their view of compliance issues, which they’ve done in the past.

They also may ask the judge to impose sanctions on the state if they believe it has not met the requirements of McConnell’s very prescriptive order of May 18.

The DOJ and Charles Moseley, the monitor, have been checking compliance with the consent decree on the basis of files they have selected from a list the state has provided of all individuals who fall under the purview of the agreement, about 3,000 people in all. The individuals are identified by a code that protects their privacy.

The case is extremely complex, with many related steps needed to achieve the long-term goal of the consent decree – to allow persons with disabilities the choice to participate as much as possible in regular employment and community activities. The agreement remains in effect until Jan. 1, 2024.

A July 1 Deadline for Supported Employment

One of those steps, spelled out in the consent decree itself, is a requirement that the state would find supported employment by July 1, 2016,  for all eligible individuals who left high school during the 2015-2016 school year. 

That population is estimated at a minimum of 74 individuals by the Rhode Island Department of Education (RIDE). 

In an interview Aug. 18, a state official could not say whether the employment requirement has been met because it does not have employment data as recent as July 1.

For now, the state is getting employment statistics from an “Employment and Day Activity Outcomes Survey” for adults with developmental disabilities that is done on a quarterly basis by the Sherlock Center on Disabilities at Rhode Island College.

The latest survey is a snapshot of what adults with disabilities were doing during their daytime hours in March, according to Jennifer Wood, Deputy Secretary of Health and Human Services.

Wood said statistics for July won’t be available until September.

Supports necessary for individuals to access regular employment vary with the needs of the person. They may include transportation, extra training that breaks down the job into small steps, or even a job coach who stays with the employee for the entire work shift. Typically, individuals with intellectual or developmental disabilities employed in the community work part time.

A Pay Raise For Direct Service Workers

During July, the state has submitted numerous documents that could have a bearing on the September court session, which is officially termed a “status conference.” 

Among the state’s filings is a progress report on what Wood has described as the “huge mathematical exercise” of delivering $5 million in pay raises- an average of $600 a year per person before taxes  – to direct service workers and job coaches.

Pay raises have been described as essential to stabilize a workforce of direct service workers who are asked to do demanding jobs for less than they would make at a fast food restaurant. Turnover ranges from about 35 percent to 80 percent annually, according to testimony before the General Assembly earlier this year.

At a recent community forum, Jane Gallivan, the interim Director of Developmental Disabilities, said workers should have checks by Oct. 1 that incorporate retroactive pay going back to the start of the current fiscal year, July 1.

The judge’s order gave the state until Aug. 1 to “appropriately increase salaries, benefits, training and supervision for Direct Support Professionals and Job Coaches.”

Performance-Based Bonus Plan Outlined

Another money issue involves government reimbursement paid to the  agencies themselves.

The state has filed a progress report with the court on plans to use $6.8 million in performance-based bonuses approved by the General Assembly in a two-phase program during the current fiscal year.

The program is initially planned to reward service providers when they place clients in jobs, after the workers have been employed for three months, and again at the six-month mark.  

These incremental bonuses would total an average of $15,750 per person, although the number of incentives and the dollar amounts may be adjusted, Wood has said. 

The state has not yet begun taking applications from providers to participate in the program, according to a spokeswoman for the Executive Office of Health and Human Services.

The incentive program is to be piloted until December with a limited number of private service providers.

The judge’s order required the state to implement the initial phase of the program by Aug. 1, and to turn in evidence that all providers have signed performance-based contracts by Dec. 31.

A Call For A New Reimbursement Model

McConnell also called on the state to implement a new reimbursement model by August 1 that is “sufficiently flexible to allow providers to be reimbursed for services rendered, including, but not limited to career exploration discovery services, vocational situational assessments, work trials, development of job seeker profiles, job search and placement, job training and support, support coordination, and transportation services.”

There is similar language in the consent decree, which specified that providers should be paid for job-related and job counseling work that is “not face-to-face with the client.”

Although performance bonuses will be an added “layer” of payment to service providers in the incentive program,  according to Wood, she has said that the current reimbursement model will remain in place.

“The unit service model is the unit service model,” she said in a recent interview.

For daytime services, this model requires providers to document the time workers spend with clients, face to face, in 15-minute increments. Providers are not paid for time clients are absent for any reason, even though they must staff their programs at the same level, regardless of varying attendance.

The judge’s order says the state must now have a “new service package design” that includes up-front individual financial authorizations for supported employment services.

Wood has said specific authorizations for supported employment services will be awarded to individual clients of providers enrolled in the performance bonus program – an estimated 200 people in all.

Except for that group, clients will continue to have to trade in other types of authorizations, like generic day services, to get employment-related supports, she said.

The State's Other Progress Reports

To comply with other requirements of the court order, the state has submitted:

  • ·An overall project management plan involving the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH), RIDE, and the Office of Rehabilitation Services (ORS) in the state Department of Human Services
  • ·A transition timeline covering services to young people with developmental disabilities aged 14 to 21, including details on which agency and the type of worker who will provide the respective supports. 
  • A comprehensive communications plan, including details on relaying the status of pending applications for adult developmental disability services to applicants and their families.

There are now 224 pending applications for adult services, a slight reduction from a backlog of about 237 reported in mid-May.

As of last Friday, however, eligibility workers had screened all but four of the 224 applications and assigned them to one of three categories; “likely eligible, likely ineligible” or “need further documentation,” Wood said.

This screening process sets the stage for decisions on applications in the first two categories to be made within 30 days, she said, enabling the state to retire the backlog by the end of September.

The screening also enables eligibility workers to promptly notify those who need to submit more information. 

In the past, those who needed to gather additional documentation might not have known it until their cases got to the top of the pile and were reviewed by the eligibility workers – an indefinite time period. 

The initial assessment makes the decision-making process much more efficient, Sophie O’Connell, a spokeswoman for EOHHS, said in a follow-up email.

EOHHS, which has taken over management of the Division of Disabilities at BHDDH since the beginning of the year, has heightened its oversight of the application screening process during the summer and used “data and performance management to keep our efforts on track,” O’Connell continued.

“The team met every day in the morning and the afternoon to set goals, review progress and problem solve as needed” during the screening process, she said.

At a hearing in April, the DOJ presented evidence that some individuals turning 21 were waiting extensive periods of time to receive notice of eligibility for adult services and then had trouble finding programs suited to their needs.

The consent decree requires that community-based services, including supported employment, be in place for individuals with developmental disabilities when they reach the age of 18. 

State law also says that individuals with developmental disabilities are eligible for adult services at age 18, although as a practical matter, it is not uncommon for them to remain in high school until age 21.

Nevertheless, the consent decree anticipates a seamless and individualized transition between school and the adult world.

McConnell will hear the status of consent decree compliance at 2 p.m. Sept. 16 in Courtroom 3 on the second floor of the federal courthouse on Kennedy Plaza in Providence, according to a notice in the case file.