Consent Decree Drives Proposed Hike In RI DD Spending

By Gina Macris

Rhode Island Governor Dan McKee would add more than $30 million to developmental disabilities spending to raise starting pay for direct care workers to $20 an hour, hike dozens of reimbursement rates to private service providers, and add ten new staff to help implement a 2014 consent decree.

The pay increase, costing $29.9 million in federal-state Medicaid funding, would be the third annual hike intended to help private agencies and the so-called “self-directed” population managing their own service programs. The wage increase would comply with a federal court order that dates back two years.

In 2021, when the starting wage for direct care workers was $13.18 an hour, Chief Judge John J. McConnell, Jr. ordered the state to raise wages to $20 an hour by 2024, calling a lack of staff the single biggest barrier to implementing the day-to-day requirements of the consent decree, albeit not the only one.

In 2022, with pay raised to $15.75 an hour, the Rhode Island system added 106 new direct care workers from January through June.

On July 1, 2022, the starting pay increased again to $18 an hour, and the state, prodded by the court, launched a workforce initiative to recruit candidates for direct care jobs. In September alone, the system filled 146 vacancies, according to data collected by an independent court monitor.

Yet there were still 693 vacancies in some three dozen private agencies and as many as 1,000 job openings among self-directed consumers and families, the monitor reported in early November.

overview of proposed DD spending - RI Department of Administration

In all, McKee seeks a total of nearly $417.4 million for all developmental disability services in the fiscal year beginning July 1, including slightly more than $385 million for the privately-run system, the backbone of consent decree compliance. That figure for private agency and self-directed services represents a bump of about $32.2 million over the current allocation of about $352.9 million.

A parallel network of state-run group homes would get $32.4 million in the next budget, or almost $1.8 million more than the current funding level of $30.8 million.

The budget for the next fiscal year, July 1,2023-June 30, 2024, will finance the state’s final push to comply with the consent decree before the deadline on June 30, 2024.

The state agreed in 2014 that by mid-2024, it would eliminate sheltered workshops paying sub-minimum wages and move away from isolated day care centers. Instead, there would be a de-centralized network of individualized services enabling adults with developmental disabilities to become integrated in their communities.

The Department of Justice (DOJ) has said that Rhode Island will likely miss the 2024 deadline if it moves at the current pace. The DOJ cited numerous factors contributing to a lack of services, particularly the individualized services in the community that are the cornerstone of the consent decree. A far-reaching federal court order issued Dec. 6 lists some 50 requirements that must be completed by the deadline on June 30, 2024.

McKee wants the new consent decree implementation staff on board as early as possible.

A spokesman for the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) said the department hopes to complete the hiring process by the fourth quarter, which runs from April through June. The cost for these added workers would be $203,275 for the first full year, taking into account federal Medicaid reimbursements and savings from staff turnover in other positions, according to McKee’s executive summary of the spending plan.

Eight of the ten positions will be permanently added to the Division of Developmental Disabilities (DDD), the BHDDH spokesman said.

The DDD jobs include:

• an “interdepartmental project manager”

• a “chief of staff for development training and continuous quality improvement”

• ·an “associate administrator for community services”

• five positions promoting community development as it relates to adults with developmental disabilities

The salaries will range from $66,162 to $95,552 a year, the BHDDH spokesman said.

Two other employees not attached to BHDDH will help implement an outside consultant’s recommendations for reimbursement rates for private providers.

Undertaking a rate review itself was part of a court order issued in October, 2021. Consultants disclosed preliminary recommendations last September that called for increases ranging from about 25 percent to 97 percent in dozens of reimbursement categories to private providers.

But McKee said in an executive summary of the budget that the consultant’s report is “currently under review and may further increase the recommended amount of financing” allocated to the private developmental disabilities system.

Among other actions, the Dec. 6 court order requires the state to identify successful pilot programs promoting integration that have been developed by private service providers during the past year and make those programs available to all those who want them, regardless of the way consultants have structured reimbursements to the private sector.

The consent decree has brought more transparency to budgeting by generating pressure on the General Assembly to include adults with developmental disabilities in the biannual caseload estimating conference, a public process used to project the state’s obligations for public assistance, like food stamps. Developmental disability costs were added in 2021.

The most recent caseload estimating conference, in November, projected there will be $8.5 million less in reimbursements to private service providers than budgeted for the current fiscal year because the population is expected to use fewer support services than initially budgeted.

McKee’s proposal takes the caseload estimating conference projections into account, as well as other related costs, in reducing developmental disabilities services by about $4.4 million, from about $352.9 million to about $348.5 million, in the current fiscal year.

The caseload estimating conference also highlighted the fact that consumers and families often must appeal individual budget allocations to get needed services – a feature of the current reimbursement system which the federal court has cited as a weakness.

Projections for the current fiscal year include $22.8 million in successful appeals, or $5.8 million more than budgeted. An independent court monitor has said consumers should not have to make lengthy appeals to get the individualized services to which they are entitled.

The consent decree draws its authority from the Supreme Court’s Olmstead decision, re-affirmed the Integration Mandate of the Americans With Disabilities Act, requiring public services for all persons with disabilities to help them lead regular lives in the their communities.

Developmental disabilities funding makes up about two thirds of the overall BHDDH budget, which is currently funded at about $597.1 million. McKee would raise the BHDDH total to about $619.6 million in the next fiscal year, with more than half the revenue coming from federal Medicaid reimbursements.

RI's Olmstead Consent Decree Coordinator Moves On

By Gina Macris

Aryana Huskey, Rhode Island’s latest  statewide coordinator for implementing the 2014 Olmstead consent decree, has stepped down after 14 months to accept a job with the Healthcare Workforce Management Initiative run by the state’s Executive Office of Health and Human Services. 

She is the sixth person in eight years to work as consent decree coordinator, a position created at the request of an independent federal court monitor to unify the state’s response to the consent decree.

Responsibility for implementing the decree is spread across several departments of state government, while the General Assembly holds the purse strings.

In the last two years, legal proceedings in the case have made it clear that a community-based service system required by the consent decree cannot become reality without significant additional funding and legislative change to certain administrative practices. Only two years remain for the state to fully comply with the consent decree.

Huskey, who worked out of the state Executive Office of Health and Human Services (EOHHS), made the announcement in an email to the “DD Provider Community” on Friday, May 27, her last day as consent decree coordinator.  

EOHHS did not have any immediate announcement about plans to hire another consent decree coordinator or say who might serve as interim coordinator.  

In addition to EOHHS, responsibility for implementing the consent decree is spread across the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH), the Department of Human Services, the Department of Education, and the Department of Labor and Training.  

BHDDH delegates the day-to-day work of carrying out the changes mandated by the consent decree to private agencies it licenses to care for adults with developmental disabilities.  

The consent decree draws its authority from the Olmstead decision of the U.S. Supreme Court, which says people with disabilities have the right to receive services in the least restrictive environment that is therapeutically appropriate. That environment is presumed to be the community, the high court said.

For more background on the position of consent decree coordinator, click here.

Federal Judge Presses RI To Raise DD Worker Wages In Wake Of Severe Shortage Of Services

By Gina Macris

The U.S. District Court has put pressure on the state of Rhode Island to increase the pay of front-line workers who support adults with developmental disabilities in the budget beginning July 1, a year earlier than the disability service agency had planned.

Indeed, two human services officials have recommended that privately-employed front-line workers serving adults with developmental disabilities get $15 an hour – a hike of nearly $2 –in light of a new report that the post-pandemic workforce will fall far short of the number needed for complying with a 2014 civil rights decree.

On April 28, the day after hearing about the worker deficit, Chief Judge John J. McConnell, Jr. issued an order saying the rates must be “reasonably comparable” with those paid in the state’s own group home system and in neighboring Massachusetts and Connecticut.

Massachusetts and Connecticut pay $15.75 and $15.78, respectively.

The state pays its own group home workers an average of $18.46 an hour and sets rates for private providers that allow them to pay front-line employees an average of $13.18 – about five dollars less than the workers make in the state-run group homes, according to figures provided to McConnell.

Moreover, the budget now under consideration by the General Assembly assumes the private sector will absorb more than 100 residents of state-run group homes, without any rate increases.

COVID Exacerbated Worker Shortage

A report submitted to the court April 27 indicated private providers simply don’t have the staff to take on any new clients, let alone meet the demands of the 2014 consent decree by the time it expires in 2024.

The report, compiled by the same consultants the state used for a $1.1 million analysis completed last July, started with the premise that a “stable and skilled workforce is a necessary pre-condition” to implementing changes required by the consent decree.

The consultants concluded that at the end of 2020, the privately-operated system had 1,764 direct care workers, only 62 percent of the 2,845 full time employees it needed to ensure that adults with intellectual and developmental challenges have access to jobs and other activities in their communities, as required by the consent decree. That’s a gap of 1,081 full-time positions.

Currently, the system is staffed at 62 percent of the capacity it would have if all positions were filled, said the consultants. Except for those living in group homes, eligible adults at the end of 2020 generally received less than half the services they got before the pandemic. For those living in family homes, the reduction was calculated at 71 percent, according to the consultants.

The consultants previously worked for the New England States Consortium Systems Organization (NESCSO,) a non-profit regional organization under contract to the Department of Behavioral Healthcare, Developmental Disabilities and Hospital (BHDDH) to analyze the developmental disabilities system top-to-bottom – but provide no recommendations.

The latest report, presented to McConnell April 27, was commissioned by the Community Provider Network of Rhode Island, (CPNRI), a trade association.

CPNRI seeks an hourly rate of $17.50 an hour for front-line workers and proportional increases for supervisory and other personnel. CPNRI’s executive director, Tina Spears, told McConnell during the court hearing that the proposed $15 hourly rate would only address direct care worker pay.

The pay hike would cost nearly $26.9 million and would require legislative approval in the next two months if the change were to take effect in the budget beginning July 1.

Will The Governor Amend Budget Plan?

During the April 27 court hearing, an independent court monitor in the case, A. Anthony Antosh, said he understood a new budget article is to be drafted in early May.

Neither the office of Gov. Dan McKee nor BHDDH have responded to questions about any top-level support of a $26.9 million expenditure to raise worker pay or how they would fund it.

The Director of the Developmental Disabilities, Kevin Savage, was one of the two officials recommending the $15 hourly wage. The other was Kayleigh Fischer, Director of Budget and Finance at the Executive Office of Health and Human Services.

In January, McConnell raised eyebrows at the State House when he ordered the state to raise direct care wages to $20 an hour by 2024.

Both the House and Senate leadership withdrew their representatives from talks organized by the court monitor about consent decree reforms, which must be up and running by July 1, 2023, a year before consent decree is set to expire.

Instead, legislative spokesmen said at the time, the respective chambers would consider reforms in the context of the budget process.

But with only two months left until the start of the next fiscal year, that process has been silent on developmental disability reform.

McConnell Tightens The Reins

The apparent passivity of the legislative process, combined with the fresh data showing that non-compliance with the consent decree has accelerated during the pandemic, apparently prompted McConnell to tighten the reins in his oversight of the case.

He has been adamant that the state cannot meet the integration requirement at the heart of the consent decree without beginning implementation of a three-year plan in the next budget.

The current system, now ten years old, comes with a reimbursement system built on congregate care – a violation of the Integration Mandate of the Americans With Disabilities Act.

While BHDDH officials had said they wanted to tackle structural reforms first, McConnell’s latest order accepts the position of providers that they cannot get their clients into the community unless they first have an adequately paid, stable workforce.

Roughly one in three workers leave within a year, and one in five jobs goes begging, with the majority of supervisory staff frequently filling in for front-line workers, according to various reports.

McConnell’s latest order says the state must continue to meet in person or by teleconference with providers and at least one representative of families who direct their own programs to address the immediate fiscal and administrative issues in several court orders dating back to last July. The judge wants a progress report by the end of May, he said.

The annual state budget typically is finalized in early June for the next fiscal year, but McConnell said state officials should continue talking with providers and at least one family representative to prepare for the following two fiscal cycles leading up to the deadline for full compliance with the consent decree in 2024.

In addition, McConnell’s order said the developmental disability caseload should be part of the twice-yearly process the governor and the General Assembly use to determine public assistance obligations beginning in November of this year. He said he will continue to look at job turnover and vacancy rates, as well as client participation rates, to determine the effect of the wages on the system.

Governor McKee’s budget proposal would have the developmental disability caseload become part of the twice-yearly meeting, the “Caseload Estimating Conference,” in November, 2022.

The caseload and revenue-estimating conferences in May and November are considered critical tools in budget-planning.

Federal Judge Orders RI DD System Overhaul, $7 Worker Pay Hikes By 2024

By Gina Macris

Chief Judge John J. McConnell, Jr. of the U.S. District Court has tightened his reins on Rhode Island’s developmental disability system in an order that gives the state two and a half years to raise the hourly wages of direct care workers nearly $7, to $20 an hour, as part of a sweeping overhaul to comply with the Integration Mandate of the Americans With Disabilities Act.

Through its budget, the state controls the parameters of wages for front-line caregivers, who make an average of $13.18 an hour working for some three dozen private agencies under license from the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH).

McConnell’s order, issued Jan. 6, distills recent recommendations of an independent court monitor, who said that Rhode Island cannot fully comply with a 2014 civil rights decree unless it overhauls its entire developmental disabilities system and increases funding. The civil rights consent decree says federal oversight is to expire June 30, 2024, but only if corrections of civil rights violations have been in place for at least a year.

Low front-line worker pay is widely regarded as the biggest weakness of the state’s developmental disability system. Provider agencies, as well as those independently coordinating their own services or the services of loved ones, have found it increasingly difficult to recruit and retain staff, who often can make more in fast food restaurants and retail stores, or at an Amazon distribution center. The staffing situation has only been exacerbated by the COVId-19 pandemic in the last year.

With the 2024 deadline in mind, McConnell’s order gives the state about six months to develop a three-year budget plan that will subsequently reach the $20 hourly worker rate. That pay increase would be effective in the 2024 fiscal year, which begins July 1, 2023.

The budget plan also must provide:

• Proportional wage increases for other categories of support staff, like job developers and supervisors

• Increased funding to address the costs of moving from a segregated system of care to one that integrates adults with developmental disabilities in their communities for work and leisure time.

• A per-capita amount for technology. Mobile phones and other hardware would provide internet connectivity still inaccessible to many adults with developmental disabilities as well as provide other kinds of assistance, depending on individual needs.

• Increased funding for transportation, found to be a barrier for many in getting to work or attending community events.

• Increased funding for the individualized planning that is supposed to drive purposeful services designed to help people lead meaningful lives.

Other than the direct care wages, McConnell’s order specified no dollar amounts for the three-year fiscal plan, which he said must be completed before the next fiscal year’s budget is finalized. (Plans aside, the General Assembly can only authorize funding one year at a time.)

The judge said the amounts must be negotiated between state officials and representatives of the community, including “individuals with intellectual and developmental disabilities, families, organizations that provide services and supports, and other stakeholders.”

And beginning this year, McConnell said, the legislative and executive branches must take into account the developmental disabilities caseload in calculating its public assistance obligations in the semi-annual Caseload Estimating Conference, which occurs in May and November in conjunction with the Revenue Estimating Conference. The costs of the developmental disabilities services historically have been omitted from caseload estimating conferences, which are used by the executive and legislative branches in annual budget planning.

In addition, the judge’s order said the state has until June to complete the revision of “all aspects of the developmental disabilities and funding system,” a reference to basic assumptions and regulations that for the last decade have been designed to promote group or congregate care. That effort has been underway since last July. Its parameters are already subject to a separate court order.

Since 2016, state officials have strived to provide pilot programs to support regular employment and increase community activities for adults with developmental disabilities, but it has become increasingly clear that the existing level of funding and the associated reimbursement rules for private service providers will not support system-wide change.

A full discussion of the issues reflected in the judge’s order are contained in a recent fiscal analysis submitted to the court by the court monitor.

DiPalma: RI DD Services Need More Than $18 Million To Continue Consent Decree Reforms

By Gina Macris

One of the Rhode Island Senate’s chief advocates for adults with developmental disabilities applauded the House and Senate consensus on restoring $18.4 million to reimbursements for private service providers but said that amount is not enough to enable the state to continue transforming its programs to comply with the Americans With Disabilities Act.

Reacting to the latest positive revenue estimates, Sen. Louis DiPalma, D-Middletown, said May 11 that reversing a cut planned by Governor Gina Raimondo for the fiscal year beginning July 1 would be a “phenomenal step forward.” 

But DiPalma, who has closely followed developmental disability issues, said he hopes the General Assembly can find additional funds so that the state can continue to invest in the goals of a 2014 civil rights federal consent decree and also, for a third consecutive year,  raise wages for direct care workers who provide services to adults with developmental disabilities. 

Restoring $18.4 million to private providers, and an additional $3 million to a state-run network of group homes, would bring the developmental disabilities budget to about $272.2 million. That reflects the pace of spending for the current fiscal year.

DiPalma said developmental disabilities will need about $275 million to $280 million in federal and state Medicaid funding during the next fiscal year to continue the decade-long transformation of services from a segregated to an integrated model, as mandated by 2014 consent decree with the U.S. Department of Justice. 

DiPalma’s remarks came the day after the state Revenue Estimating Conference concluded May 10 that revenues for the next 14 months are expected to run a total of nearly $135 million ahead of estimates made in November.  That total includes an additional $75.5 million for the fiscal year ending June 30 and another $59.4 million in Fiscal 2019, which begins July 1.

The $18.4 million gap in reimbursements to private providers for Fiscal 2019 refers tMo both federal and state Medicaid funds, with the federal government providing roughly 52 cents on the dollar.  That means the state would have to put up about $9 million to close the $18.4 million hole.

House Speaker Nicholas A. Mattiello and the President of the Senate, Dominick J. Ruggerio, issued separate statements saying they were pleased that revenues exceeded prior estimates. In recent days, they also have listed developmental disabilities as one of the priorities that must be addressed, although neither viewed the extra cash as a panacea, because of multiple unmet demands on the state budget. 

Mattiello’s statement said, “This offers some more options for us as we consider some very tough choices in our budget deliberations. I am committed to making sure we pass a responsible budget that addresses the critical needs of our citizens and continues to move the state forward.”

In addition, on May 11, he said the House “always” planned to address the $18.4 million gap between current spending for developmental disabilities and the governor’s proposal for the budget cycle beginning July 1.

Ruggerio, the Senate president, said, “As we work together to craft a responsible budget, it is important to consider that a significant portion of this increase is one-time revenue that may not continue in future years, and that there are significant gaps in the current budget proposal that need to be filled. However, the additional revenue does provide some flexibility to address Senate priorities such as funding for developmental disabilities care within the BHDDH budget and funding for DCYF.” Ruggerio referred to the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals, and to the Department of Children, Youth and Families.

While adequate funding is the most immediate issue, there are other regulatory matters that concern a federal court monitor and the BHDDH administration. The Senate has signaled it is open to change, both in the short term and the long run.

In a brief telephone interview May 11, Mattiello said he, too, is open to considering changes, although he did not get  into specifics.

“I know the needs are significant,” he said. “I’ve got constituents in the community that have developmentally challenged family members. These folks need help, and I’m very, very available to that.”

“I’m open to study and to doing things better,” Mattiello said. “The department (BHDDH) and the administration certainly can do things better.”

“These are complex issues,” Mattiello said.

The Senate has passed a resolution authorizing a 19-member commission to study the fee-for-service reimbursement structure, with a report due March 1, 2019.

In addition, the Senate Committee on Health and Human Services is to vote May 15 on a bill to change the timing of individual funding authorizations for developmental disability services from quarterly to an annual basis.

An independent federal court monitor in the consent decree case, administrators at BHDDH, and private service providers all have found the quarterly authorizations problematic for a variety of reasons.

Providers have said the quarterly authorization system does not allow them to do any long-range budgeting. Anecdotal accounts of families unable to find services indicate a tendency in recent years for providers to avoid taking on clients with complex and costly needs for fear of financial risk that they may not be to cover.

Meanwhile, the Director of Developmental Disabilities testified at a recent Senate Finance Committee meeting that quarterly authorizations are administratively burdensome. The 3700 individual authorizations in the division’s caseload must be entered manually in the state reimbursement system four times a year, said the director, Kerri Zanchi. 

At the same time, DiPalma, the first vice chairman of the Senate Finance Committee, noticed that in some years there are significant dips in the caseload numbers in April and October – as many as 145 or 150.  This timing coincides with the governor’s budget preparation process in the fall and the legislature’s refinement of the final figures in the spring.  In general, each client represents an average of $60,000 in federal-state Medicaid funding. 

One reason for that variability might be data entry errors, according to Donna Martin, executive director of the Community Provider Network of Rhode Island, a trade association of service providers.

The bill requiring annual authorizations says they are necessary to allow adults with developmental disabilities to plan their services in a “flexible manner consistent with their stated goals and plan of care,” in accordance with the principles of the Centers for Medicare and Medicaid Services and the Home and Community Based Services Final Rule. Among other things, the Final Rule requires service plans to be based on an individual’s needs and preferences.

The bill would not preclude the state from changing reimbursement rates to providers in the middle of a fiscal year, but they and their clients would have to receive 45 days’ notice.