RI Katie Beckett Settlement Spotlights Workforce Shortage

By Gina Macris

Two community organizations have questioned whether Rhode Island’s Executive Office of Human Services (EOHHS) can comply with a recent civil rights settlement agreement that requires the state to make available home and community-based services to all those children who are entitled to them by law.

On May 18, the U.S. Department of Justice (DOJ) and the U.S. Attorney’s Office in Rhode Island announced a settlement agreement with the EOHHS involving a boy with autism who had received only about half of the home-based therapeutic services the state had promised to provide under the “Katie Beckett” Medicaid program for children and teenagers with disabilities and complex medical needs living at home.

As a result, the boy was placed in a residential program out of state. But his parents withdrew him out of concern for alleged abuse and neglect. After about six weeks in the family home, the child moved to an in-state group home, according to the settlement agreement.

The DOJ found that the state “failed to ensure sufficient provider capacity” to deliver home and community-based services in the appropriate quantity, with the result that the boy was “unnecessarily segregated in an out-of-state residential treatment facility.”

Among other provisions, the agreement requires the state provide all the appropriate services to each eligible child in the state – an estimated 1,000 - through privately-run case management agencies called Cedar Family Centers, which would be responsible for individualized planning and coordination of care.

But the Community Provider Network of Rhode Island (CPNRI) and the Rhode Island Parent Information Network (RIPIN) have said the private service providers the state relies upon for therapeutic children’s services “do not have the capacity to help the state do what it has promised to the DOJ.”

In a statement, both agencies said they “applaud the DOJ’s decision to investigate the State’s failure to meet its obligations to provide services and support” for children with disabilities in Rhode Island.” The statement referred to the investigation that led to the settlement agreement.

Sam Salganik, CEO of RIPIN, said there simply aren’t enough workers to provide direct care or enough Cedar Family Centers to do individualized planning and coordination. 

He said the two Cedar Family Centers in the state, one run by RIPIN, have a total capacity of about 300 cases. That’s fewer than a third the estimated number of children eligible. It is believed there are roughly 1,000 children in Rhode Island who qualify for the Katie Beckett Medicaid program, but EOHHS has not provided an exact number. 

The settlement agreement gives EOHHS two months – until July 18 - to assign each eligible child to a Cedar Family Center.

The workforce shortage that prompted the boy’s family to file a complaint in 2018 is the same one plaguing other sectors of direct care, including services for adults with developmental disabilities. In that case, the lack of an adequate workforce is regarded as a major obstacle in implementing a 2014 consent decree requiring the state to provide daytime services that will enable adults with developmental disabilities to become part of their communities.

EOHHS has not responded to questions from Developmental Disability News about its strategy for complying with the settlement agreement.

The complaint from the boy’s family said the state authorized him to receive 25 to 34 hours a week of home-based therapeutic services and/or applied behavior analysis therapy since at least 2014,but failed to provide back-up care when scheduled staff became unavailable.

The settlement agreement requires the state to pay $75,000 in “alleged damages” to the boy and his family, although both DOJ and EOHHS say in the agreement that the document is not to be construed as an admission of liability by the state.

Other provisions of the agreement address detailed changes in policies and procedures to ensure that eligible children receive appropriate services as part of well-coordinated and individualized service plans.

The Katie Beckett Medicaid waiver program is named after an Iowa woman who became a pioneer in advocacy for home and community services. Katie Beckett suffered inflammation of the brain shortly after she was born in 1978 and remained hospitalized until she was nearly 3 because Medicaid regulations would not pay for ventilator care at home. The advocacy of Katie’s mother, Julie Beckett, eventually reached President Reagan, who in 1981 ordered a waiver in Medicaid rules for Katie. Katie died at the age of 34 in 2012, and her mother died about a month ago at the age of 72. Today, all 50 states have Katie Beckett Medicaid programs.

Both the recent settlement agreement between EOHHS and the DOJ and the long-running consent decree affecting adults with developmental disabilities draw their authority from the Integration Mandate of the Americans With Disabilities Act, as reinforced by the Olmstead decision of the U.S. Supreme Court. The mandate says people with disabilities are entitled to receive services in the least restrictive environment that is therapeutically appropriate – which is presumed to be the community.

The consent decree, which focuses on daytime services for adults, and the May 18 settlement agreement with EOHHS are the only two Olmstead-related agreements between the state and the DOJ since 2014, but the legalities of the two are different.

The consent decree is a negotiated agreement entered as a court order that is enforceable by court action, according to a DOJ spokesperson.

A settlement agreement is an out-of-court resolution that requires a signed agreement and certain actions to be performed by the defendant, with periodic assessment of compliance handled by the parties without involving a court.

If there is a breach of the agreement by EOHHS, DOJ may file a lawsuit to seek corrective action, 

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.

Low RI Medicaid Rates Strain All Healthcare Services, Witnesses Say

By Gina Macris

Annette Bourbonniere

Without a personal care assistant, Annette Bourbonniere of Newport needs up to five hours each day to get herself dressed in the morning.

For the past year, she hasn’t been able to find regular help for a position that pays $15 an hour, the Rhode Island-approved Medicaid rate for the services she needs, unchanged for the last 18 years.

Not only is it impossible for her to engage in productive activity, Bourbonniere says, but “I worry every day how I am going to survive.”

Bourbonniere, seated in a high-backed power chair, was one of hundreds of people from all walks of life who converged on the Senate Finance Committee April 28 to hammer home the message that the state’s Medicaid program is broken.

The witnesses testified for a cluster of bills which, taken together, would stabilize Medicaid-funded services with one-time rate increases and set up a rate review process every two years, with a 24-member committee drawn from the community advising the Executive Office of Health and Human Services (EOHHS). There is no estimate of the overall cost of the bills.

In a letter to the Senate Finance Committee, the Director of Administration, James E. Thorsen, and the acting Secretary of Health and Human Services, Ana P. Novais, indicated that the prospects for immediate changes appear gloomy.

Thorsen and Novais said there are 74,000 separate Medicaid rates in the state’s program, all of which cannot be revised in one year as the legislation requires. A rate review “of this magnitude” would take at least five years, they said.

They said the bill establishing a 24-member advisory committee for Medicaid rate review instead might be seen as “establishing policy and rate setting”, rather than advising EOHHS, the agency with the legal authority to set rates.

There is also an appearance of a conflict of interest in that the potential make-up of the committee includes members who would be recommending rates for other members of the same group, Thorsen said.

Support for Medicaid reform remains uncertain in the House, where Rep. Julie Casimiro, D-North Kingstown, has organized companion legislation adding up to a Medicaid overhaul..

At the outset of the hearing, State Sen. Ryan Pearson, D-Cumberland, the chairman of the Senate Finance Committee, said the Senate has already made Medicaid reform one of its top priorities in the current session.

Louis DiPalma

The legislation was spearheaded by Sen. Louis DiPalma, D-Middletown, first vice president of the Senate Finance Committee, who received repeated praise from the speakers for his relentless focus on equity issues in the human services.

Dozens of witnesses told the committee that the reimbursement rates to community-based health and social service programs fall so far below costs that:

• Access is shrinking to out-patient services that can prevent costly hospitalizations and even life-threatening situations.

• Caregivers ranging from doctors and dentists to nursing assistants and personal assistants to those with disabilities are either leaving their fields or leaving the state.

• Hospitals are left to deal with more patients who have nowhere else to go, while they lean on private insurers for more money to fill the gap. In the end, those who buy private insurance must foot the bill for escalating premiums.

According to the testimony:

• Four hundred infants with special needs are waiting for early intervention services to which they are legally entitled.

• Nearly six hundred elderly are waiting for home care services that will prevent them from going into nursing homes.

• Almost 200 children and youth are waiting for psychiatric care, sometimes in hospital emergency rooms.

Sherrica Randle

At the hearing, Sherrica Randle said her 13-year-old daughter has been hospitalized three times in the last six months for behavioral issues. During the most recent episode, her daughter spent nearly two weeks in the emergency room of Newport Hospital for lack of a pediatric psychiatric bed at Bradley Hospital, Randle said.

Elsewhere, a teenage girl who had made a “serious” suicide attempt nevertheless had to wait four months for mental health services, according to Alexandra Hunt, clinical director of Tides Family Services.

The COVID-19 pandemic exacerbated the labor shortage in front-line human services but many agencies have struggled for years to pay enough money to prevent workers from leaving the field, the witnesses said. Jamie Lehane, President and CEO of Newport Mental Health, said he had to sell a building a few years ago to continue making payroll and avoid a shut-down.

Like other community social service and home care agencies, providers of services for adults with developmental disabilities can’t get qualified personnel to work for Medicaid-approved rates, starting at $15 an hour.

These providers compete with retail and fast food chains, which pay more for jobs that are less demanding, said Casey Gartland, representing the Community Provider Network of Rhode Island, a trade association.

Unlike other sectors of the Medicaid program, services for adults with developmental disabilities are subject federal oversight because of a 2014 civil rights consent decree and several court orders, one of which requires the state to raise wages to $20 an hour by 2024.

The proposed budget of Governor Dan McKee would raise the wages of front line developmental disability workers to $18 an hour as an intermediate step on July 1.

But the most recent data about the workforce and inflation has prompted DiPalma to sponsor legislation that would raise the pay of developmental disability workers to $21 an hour on July 1. Rep. Evan Shanley, D-Warwick, has filed a companion bill in the House.

The Rhode Island Federation of Teachers and Health Professionals held a press conference in favor of that proposal just before the start of the hearing on Medicaid reform.

Doctors, dentists, and hospital executives testified in person and in writing that the state’s Medicaid program has a ripple effect on the healthcare of all Rhode Islanders.

The case of Women and Infants Hospital, where 80 percent of Rhode Island mothers give birth, illustrates that point.

Shannon Sullivan

Shannon Sullivan, President and CEO of Women and Infants, said it is the ninth largest stand-alone maternity hospital in the United States.

Nearly forty-five percent of its revenue comes from Medicaid Managed Care, which pays half of the Massachusetts managed care rate for obstetrical births, she said.

Simple math shows that the situation is unsustainable, she said. “This is not an issue that will go away, and it is not an issue that we have much time on,” Sullivan said.

Without Women and Infants, women experiencing difficulties in their pregnancies would have to go to Boston or New Haven to receive the same level of care, she said.

Gail Robbins, senior vice president of Care New England, the parent company of Women and Infants, said that because of low Medicaid rates, hospitals must put pressure on private insurers, whose rates are 200 to 300 percent more than Medicaid.

“It’s not a healthy bottom line,” Robbins said.

DiPalma said hospitals are not awash in cash. They absorb considerable costs in uncompensated care of uninsured patients, and must pay hefty licensing fees to the state, he said.

The Department of Administration and EOHHS support the programs funded by Medicaid and recognize the need for regular rate reviews, Thorsen and Novais said.

But “any changes to the rate setting process should be carefully measured and balanced to avoid significant negative funding impacts of other important programs such as education, public safety, and natural resources,” they said in their letter.he said.In their letter,

The state already spends 40 percent of its general revenue on human servicesm the two administrators said. By comparison, Massachusetts pays considerably more on the human services, up to 56 percent of its budget, according to DiPalma.

Others at the hearing saw the situation as a question of values.

Bourbonniere, a consultant on accessibility and inclusion, said she was dismayed when she attended an online meeting with EOHHS officials last fall and they said at the outset, with apparent pride, that Rhode Island has a lower Medicaid expenditure per person enrolled than the median in the United States.

For her and others going without services, “this was crushing,” she said in a letter to the committee.

Paying personal care assistants and other essential workers a living wage contributes to the state’s economy in the goods, services, and taxes they pay and the businesses they support, Bourbonniere said.

These essential workers also enable people with disabilities to earn a living. “Isn’t that better than the current investment in maintaining poverty,” she said.

The bills heard April 28 are:

• S2200- provides a rate-setting review every two years for all medical and human service programs licensed by the state or having a contract with the state, including those funded by the federal-state Medicaid program.

• S2306 - provides one-time increases to base rates in the Medicaid program for home care services

• s2648 - funds pass-through wage increases to those who work in long-term care in the community with $17.7 million in the established “Perry-Sullivan” law, rather than allowing the governor to use one-time funding from the American Rescue Plan in the next budget. Proponents say the state could be penalized by the federal government from using ARPA to replace or “supplant” existing funds.

• S2311 - provides for a 24-member advisory committee to EEOHS for the rate-setting process

• S2546 - provides for one-time Medicaid rate increases to early intervention and outreach programs for young children with special needs.

• S2588 - provides one-time increases to Medicaid rates for dental services and includes chiropractic care for the first time in the Medicad program.

• S2598 - increases the daily reimbursement rate to nursing homes by 20 percent for single-occupancy rooms with private bathrooms.

• S2884 - Provides a substantial increase to the Medicaid managed care rate for hospital births

• S2597 - eliminates the need for annual eligibility review for the eligible for the federal Katie Beckett program for children with disabilities, as long as a doctor says their condition is unlikely to change. the bill also allows families of eligible children to request additional service hours.

  All photos from Capitol TV

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.