By Gina Macris

Chief Judge John J. McConnell, Jr. of the U.S. District Court has begun formal contempt proceedings against the state of Rhode Island in connection with its failure to comply with a 2014 civil rights consent decree affecting adults with developmental disabilities.

In an order issued July 12, McConnell scheduled a five-day “show cause” hearing for Oct. 18 to 22, allowing the state to defend itself against a contempt finding.

McConnell noted that the state has just three years to reach full compliance by the consent decree deadline in 2024. (The U.S. Department of Justice (DOJ) has indicated in the past that it will not sign off on compliance until all the required changes have been in place for at least a year.)

With the 2024 deadline fast approaching, the state’s failure to make more progress on two broad issues, despite three orders from the judge in the last six months, has set the stage for the upcoming hearing.

In general, the state has not addressed a chronic shortage of workers in the existing system of services, nor has it shown how it plans to overhaul that system, as required by the consent decree, to support adults with developmental disabilities in their communities.

The General Assembly recently set aside $39.7 million to raise the wages of front-line caregivers in the private sector, whose work the state relies on to bring it in line with consent decree requirements.

But the pay increases alone may be too little and too late to put a dent in the shortage of workers needed to provide broad-scale supports in the community for adults with developmental disabilities.

Nor has the state fulfilled another key promise to overhaul a fee-for-service reimbursement system for private service providers that also hobbles providers’ ability to provide support for individualized work and community activities because of a bureaucracy originally designed for segregated care.

In the consent decree, signed by then-governor Lincoln Chafee, the state promised to correct an over-reliance on segregated settings, which the DOJ found violated the Integration Mandate of the Americans With Disabilities Act, as it was underscored by the Olmstead decision of the U.S. Supreme Court in 1999.

More than seven years after the consent decree was signed, the state must still “transform the system for providing services and supports and must achieve and maintain sufficient capacity for supported employment and integrated day services,” McConnell said, summing up the latest report from an independent court monitor, A. Anthony Antosh, which was submitted to him May 31.
McConnell highlighted key points from Antosh’s report:

• Integrated employment goals had been met for only 52 percent of former employees in sheltered workshops and for 79.4 percent of those originally segregated in day care centers. (Sheltered workshops were eliminated in 2018.)

• Only 55 percent of all adults covered by the consent decree were participating in community-based, non-work activities, and for an average of slightly less than 10 hours a week, below the standards set by the consent decree.

• These deficiencies were caused by a shortage of more than 1000 direct care workers. A consultants’ study done last fall showed that the state needed 2845 direct care workers to comply with the consent decree but only had 1764 in the workforce, leaving a gap of 1081.

In addition, the court monitor concluded that the state has not fully complied with three court orders McConnell has issued since Jan. 6 to get the state to pick up the pace of reform measures.

These orders gave the state until June 30 to develop a three-year budget strategy for compliance, which was not forthcoming. The judge’s orders included two measures to address the worker shortage:

• Immediate increases to reimbursement rates that enable private service providers and families directing their own programs to pay wages competitive with those offered by Massachusetts, Connecticut, and a parallel group home system run directly by the state of Rhode Island. (The recent rate increases are expected to add more than $2 to the hourly pay of front-line workers but are still less than wages of the neighboring states and the state-run group home system.)

• A roadmap for raising wages to $20 an hour by 2024.

McConnell also required the three-year compliance plan to include:

• A structural overhaul of the reimbursement system to promote integration, as well as funding to support it.

• Changes to allow adults with developmental disabilities and their families more control and flexibility in planning purposeful programs of service aligned with individual budgets.

• Increased funding for transportation.

• Per-capita funding for acquiring technology to help individuals with developmental disabilities.

In one of the orders issued earlier this year, McConnell said the state could submit an alternative three-year strategy which did not follow his own outline but still would result in compliance with the consent decree. The state submitted nothing.

Leading up to the contempt hearing in October, McConnell laid out a schedule for an exchange of information that involves Antosh, the court monitor; the DOJ, and lawyers for the state.

The first two deadlines affect the monitor, who must submit a list of witnesses by July 16 and a written preview of their testimony by July 30.

After that, the state and the DOJ will have a week – until August 6 – to comment on the monitor’s reports and the monitor will have another week – until Aug. 13 – to finalize his reports. Additional deadlines on the schedule pertain to depositions, witness lists, and disclosure of witness statements and expert reports to be submitted by the DOJ and the state’s lawyers, Marc DeSisto and Kathleen Hilton. To read McConnell’s order, click here.