RI DD Providers Seek To Present Evidence Of Underfunding In Federal Consent Decree Case

By Gina Macris

Chronic underfunding already has “significantly crippled the developmental disability system” in Rhode Island, and now Governor Gina Raimondo’s proposed budget threatens to further derail reform efforts,  according to eight private providers of services to people with disabilities.

The providers’ statements appear in an April 6 filing with U.S. District Court in which they seek to intervene and present evidence in the court’s ongoing oversight of the 2014 consent decree designed to correct the state’s violations of the Americans With Disabilities Act (ADA).

Their warning of a potential retrenchment in services mirrors a separate statement of the court’s official independent monitor, Charles Moseley, also filed April 6. In a quarterly report, Moseley says that Raimondo’s $21.4 million proposed reduction would “significantly impact” the state’s efforts to comply with the consent decree.

In filing a formal request to intervene in the ongoing consent decree case, the providers’ lawyer, Jeffrey Kasle, asks to address Judge John J. McConnell Jr. at the next consent decree hearing Tuesday, April 10.

The providers – Community Living of Rhode Island, AccessPoint RI, Gateways To Change, Seven Hills, Looking Upwards, The Frank Olean Center, the Fogarty Center, West Bay Residential Services, and United Cerebral Palsy of Rhode Island – say they won’t be able to continue implementing the consent decree’s mandate for integration of services in the community if the General Assembly adopts Raimondo’s spending plan.

The monitor, Moseley, also said that a previously-announced $3 million reduction in federal funding to the state Office of Rehabilitation Services (ORS) doesn’t appear to affect 30 individuals protected by the consent decree whose names appear on an ORS waiting list for services, because they are getting fast-tracked for similar help at the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH).

Those are the same supported employment services the eight providers say are in peril should Raimondo’s proposed budget be approved by the General Assembly.

The monitor, meanwhile, acknowledged that the $3 million reduction in available funds at ORS, combined with a $21.4 million decrease in funding from current levels, would “seriously erode” the state’s compliance efforts if the budget is enacted as proposed. 

The $21.4 million Moseley cited is the difference between Raimondo’s proposed amended budget for the current fiscal year - $272.2 million in federal and state funding - and her proposed spending limit for the next budget - $250.8 million.

The next budget’s proposed $250.8 million is also $6.1 million less than the $256.9 million the General Assembly has already enacted for the budget cycle ending June 30. After cost-saving measures at BHDDH are taken into account, developmental disabilities is still running a deficit of $15.3 million, which Raimondo would cover with a one-time boost in funds through June 30.

That one-time infusion does not acknowledge the structural underfunding of developmental disability services, according to Tom Kane, CEO of AccessPoint RI, one of the eight agencies that seek to participate in the consent decree case. Kane testified at a recent budget hearing in the Rhode Island House.

Consent Decree Requires Adequate Funding

In his report, Moseley said the Consent Decree requires the state to “timely fund” the services and supports necessary for compliance. He promised to closely follow the General Assembly budgeting process and to keep the judge and the U.S. Department of Justice informed.

Moseley also recalled that Rebecca Boss, the BHDDH director, offered assurances at a public forum Feb. 26 that BHDDH and the Executive Office of Health and Human Services are “committed to ensuring that funding for DD services would meet the needs of the individuals receiving support and that the State has no intention to cut services or reduce rates to service providers.”

“These assurances will be closely monitored in the weeks ahead,” Moseley wrote.

As in previous reports, Moseley documented the extent to which the state has met numerical targets for supported employment and related activities.

But his April 6 report also reflects a sharpened scrutiny of systemic challenges in the overall goal of the consent decree to transform Rhode Island’s services from an overreliance on sheltered workshops and segregated care to an integrated model based in the community that would comply with the ADA.

Some of the issues highlighted by the monitor can be linked to a lack of funding, or difficulties providers have in accessing the money they have been authorized to spend. They include:

  • providers’ wariness about taking financial risks to provide the extra staff necessary to integrate clients in the community for non-work activities
  • lagging efforts to develop a critically-needed quality improvement unit within the Division of Developmental Disabilities (DDD) to ensure that provider services meet standards of the consent decree
  • a lack of reliable data on providers’ ability – or inability - to serve new clients.

Report Tracks Employment

Among the majority of the consent decree population that was already receiving some sort of service when the consent decree was signed, the state has consistently met or exceeded relatively modest employment targets, although the consent decree requires the pace of job placements to pick up in the future.

Job placements have lagged for young adults – those seeking BHDDH-funded services for the first time – even though they have tended to have a more integrated education than prior generations and might be perceived as better prepared than their predecessors to take advantage of employment opportunities in the community.

The court has approved a revised schedule for the state to achieve employment targets for the so-called “youth exit” population - those who left high school between 2013 and 2016 – and Moseley said the state has met the first goal of the new compliance timeline.

He included a table, below,  which shows the cumulative number job placements the state has achieved among three categories of the consent decree population. 

 Monitor's report, U.S. District Court File 

Monitor's report, U.S. District Court File 

Besides Youth Exit, the categories include “Day Target” for those based at segregated facilities during the day and “Sheltered Workshop” for those who worked for sub-minimum wage at repetitive tasks. 

The entire consent decree population, including teenagers, numbers just over 4,000 individuals,  Moseley said, noting that it fluctuates from quarter to quarter. For a variety of reasons, the number that must be offered supported employment in the community is 2,418, Moseley said. Individuals have the right to refuse.

With the implementation in 2017 of a supported employment program that includes performance payments for service providers, BHDDH has made notable gains in expanding job placements, Moseley said.

His report included links to videos documenting the impact of meaningful work on adults facing intellectual challenges. https://vimeo.com/81024947 and https://www.youtube.com/watch?v=PBcfHqLB2QU&feature=youtu.be

Off the Job, Community Integration Lags

When it comes to integrating adults with developmental disabilities in the community for non-work activities – another main goal of the consent decree – service providers generally have a long way to go.

Moseley described a common scenario:

“Typically, individuals take part in a relatively narrow range of activities that are selected from pre-set lists or menus that vary by the day, week or month. Although these activities take place in the community in the presence of individuals without disabilities, they generally are non-participatory; people attend a community event, visit the zoo, walk through or have lunch in a park, go to a restaurant for coffee, spend time in the local library or in stores in the mall.

“These visits may improve individuals’ knowledge of community options, but they do not expand the person’s social network or engage the individual in a meaningful and productive involvement with people without disabilities.” disabilities,” the report said.

Moseley said it is important to note that several agencies do provide “productive and integrated day supports that do meet Consent Decree requirements.”

According to Moseley’s report, these providers tend to “offer day services only in integrated settings and have taken steps to ensure that individuals receiving support are fully engaged in decisions regarding the activities that they will participate in during the day.”

Moseley continued: “Some individuals are living self-determined lives and, with support from staff when needed, are volunteering in local agencies or joining community organizations. Many engage in both individual and group activities of their own choosing over the course of the week and are supported in determining what it is that they do every day and what role the service provider will play in their lives.”

The monitor said that most agencies need concentrated training, technical assistance and oversight, just as they have received for supported employment. Funding is also an issue, he said.

Funding authorizations are issued quarterly on the basis of a standardized assessment of need that may not match up with a particular person’s preferences, an important distinction since personal choice is a fundamental principle of the consent decree.

Several providers have reported that they hesitate to deviate from facility-based care because of billing and reimbursement rules that make it virtually impossible for them to estimate future expenditures and revenues. Staffing group activities in one place is inherently less costly than sending direct care workers into the community with individuals or small groups of clients.

Providers must bill for daytime services in 15-minute increments. If clients do not attend a program on any given day or portion of the day, the providers cannot be reimbursed, even though they must still pay the same labor costs.

Providers have been saying for years that they want an annual, predictable method of funding so they can manage their costs over time.

Moseley called on BHDDH to analyze the current funding model with an eye toward changes that would release providers from regulatory restrictions that hinder meaningful community integration for non-work activities, in the same way that funding methods were adjusted for the performance-based supported employment program.  Meanwhile, BHDDH recently solicited opinions from service providers on how to shape such an initiative, although the project is still at an early stage.

Moseley recommended that BHDDH identify and publicize the promising practices of local provider agencies that do integration well and that it start a pilot program of integrated non-work services for those who are served in the performance-based supported employment program.

What Happens When Families Request Services?  

In broad terms, the consent decree requires the state to ensure that it “supports and maintains sufficient capacity,” through some three dozen licensed provider agencies, to deliver supported employment and integrated non-work activities, in accordance with standards spelled out in the agreement.

While the state has made some progress addressing certain policy and practices within BHDDH as they affect providers, Moseley said, it has not developed a system for regularly collecting data on providers’ ability to respond to requests from consumers. 

At the same time, Moseley has had plenty of reports from families and advocates. He said:

“Many provider agencies turn down individuals’ applications for services or are unable to respond in a timely manner, citing barriers related to insufficient funding, inability to serve individuals with complex or challenging conditions, workforce shortages – inability of the provider agency to train and maintain needed staff – internal limitations on the size of the organization or the number of individuals served, or other reasons.”

In general, providers have said they are loathe to expand services because they are just taking on more operating debt.

While BHDDH has gathered information from its own social workers on providers’ responses to client inquiries, Moseley said that for a number of legitimate reasons, the data is largely incomplete and unreliable.

In the past, BHDDH has discouraged providers from keeping contact information for those individuals they turn away out of concern that the names might be perceived as a waiting list, according to sources knowledgeable about the process.

Moseley directed the DDD to work with providers to develop a system for gathering data for a quarterly report on the number of referrals received, those accepted and those refused and the reasons for the refusals.

BHDDH Needs To Monitor Program Quality

Funding issues also figure in halting efforts of BHDDH to create a quality improvement unit that would ensure high program standards in accordance with the consent decree. BHDDH has an investigatory arm designed to respond only to complaints of abuse or neglect of its clients.

Moseley said insufficient staffing is a “major barrier” in developing a quality improvement unit. 

DDD was to have a minimum of two staffers working fulltime on quality improvement this year but has dedicated only one person to that job, Mosely said, with part-time assistance from two others loaned from elsewhere in BHDDH and the Executive Office of Human Services. In all DDD has pulled together 1.75 full time equivalent positions to work on quality improvement. 

In addition, DDD submitted a plan for developing quality improvement functions that does not call for a feasibility study on an actual quality improvement unit until June 30, 2019. Moseley said the DDD must have the study completed by Sept. 30.

Quality improvement is of critical importance in implementing the consent decree, Moseley said, explaining that the work and non-work program of each of 38 providers must be reviewed once every two years to ensure the services meet consent decree standards. That schedule requires a minimum of least four fulltime staff, he said. The addition of staff to the state payroll requires approval from the Department of Administration.

Moseley said he “strongly recommended” BHDDH take immediate  to increase quality improvement staffing to that level. He also asked DDD and ORS to take numerous other steps to document quality improvement activities on a regular basis.

The U.S. District Court hearing April 10 is scheduled for 2 p.m. in Courtroom 1 on the third floor of the federal court building on Kennedy Plaza in Providence.

Click to read the monitor's full report. 

Click to read the motion to intervene.