Historic Investment in DD Passes RI House

By Gina Macris

UPDATE: The Rhode Island House of Representatives approved developmental disabilities reform as part of a $14-billion state budget on a 68-3 vote June 9, sending it to the Senate.

The Rhode Island House of Representatives is expected to vote Friday, June 9, on a whopping $75 million for the state to reorganize its services for adults with developmental disabilities to comply with a federal consent decree deadline in a year’s time.

Total spending for developmental disabilities would jump from about $377.3 million to $469.1 million, an increase of about $91.8 million in an overall budget of $619.6 million for the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals. Developmental disabilities spending includes about $32.4 million for a state-run network of group homes, which is receiving an increase of about $3.1 million.

The reorganization includes a wage increase for frontline workers, from an average of $19 to an average of about $22 an hour, and expanded funding for more staffing to permit all daytime services to be offered in the community.

All adults receiving support from the Division of Developmental Disabilities — roughly 4,000 individuals — will be eligible for employment-related services in addition to other assistance included in basic individual budgets.

With several federal court orders in play, the House Finance Committee voted June 2 to send the massive investment in services for adults with developmental disabilities to the full House as part of an overall $14-billion state budget.

The new developmental disabilities system, which promotes the treatment of each participating adult as a unique individual, would replace an approach that incentivized group care in day centers and sheltered workshops and depressed the wages of caregivers for a decade.

In 2014, the state accepted a federal Department of Justice finding that its system for serving adults with development disabilities violated the Integration Mandate of the Americans With Disabilities Act. Rhode Island consented to overhaul that system within ten years, a transition requiring services to be individualized and made available in the community at large which, in almost all cases, is the least restrictive environment that is therapeutically appropriate.

But the state made only incremental changes until 2021, after Chief Judge John J. McConnell Jr. of the U.S. District Court found that a decade-long shortage of workers, exacerbated by the COVID-19 pandemic, was the single biggest barrier to implementation of the consent decree.

With average wages then hovering around $13.18 a year, McConnell issued an order in January, 2021, saying the state must raise the minimum wage for direct care workers to $20 an hour by 2024. But the needle did not move until the judge issued another order requiring the state to negotiate with private service providers and families operating their own programs to arrive at an interim pay increase in the forthcoming state budget.

The General Assembly raised the minimum wage to $15.75 an hour on July 1, 2021 and then to $18 an hour effective July 1, 2022. The budget up for the House vote tonight would raise the minimum wage to $20 an hour, the last step in complying with McConnell’s court order.

Other court orders resulted in a rate review of the entire developmental disabilities system and an initiative to attract new workers to better-paying and more career-oriented jobs in caregiving, among other things.

There appears to have been ongoing negotiations between the ,court and the state on the budget continuing as late as April, when Governor Dan McKee amended his original proposal and asked the General Assembly for more money to fund 100 percent community-based care instead of 60 percent. Until then, the plan was to continue offering 40 percent of services in group day care centers, an approach which is less staff-intensive than providing individual outings in the community.

Still to be answered is whether the state, through its private service providers, can translate the expanded funding into a smooth-running inclusive new system of services in time to meet the consent decree deadline of June 30, 2024.

The director of the trade organization for most private service providers has asked the public to urge their legislators to support funding not only for adults with developmental disabilities but also for vulnerable children.

The trade organization, the Community Provider Network of Rhode Island (CPNRI), is part of a coalition of organizations supporting an estimated 100,000 people eligible for various home and community-based services that have experienced the same labor shortages as the sector focused on adults with developmental disabilities.

Companion bills in the House and Senate would allocate $200 million of federal-state Medicaid funding to shore-up home and community-based services statewide during the coming year while the state’s health insurance commissioner completes a rate review similar to the one conducted for developmental disabilities. Those bills have not advanced.

The CPNRI director, Jenna Husted, applauded the “major investments in adults with disabilities and those that support them.”

“We are, however, concerned about the lack of investment in children with disabilities. Providers of children with disabilities are facing unique challenges and it is our responsibility to provide them the necessary support to thrive.

“We urge legislators to protect the major investment in adults with disabilities, and include investments for children with disabilities,” Husted said. “Together, we will become a more inclusive State.”

The House session is expected to begin at 2:30 p.m., according to the House Calendar.

"Significant" Raises Proposed For RI DD Workers After Court-Ordered Talks

By Gina Macris

RI Governor Dan McKee’s proposal to raise wages from $13.18 to $15.75 an hour for caregivers of adults with developmental disabilities might prevent a widespread worker shortage from getting worse.

But those who have had the frustrating experience trying to recruit and retain workers at the current lower rate told the House Finance Committee June 10 that the proposed raise, while significant, will not be enough to ease the labor crisis that prevents the state from complying with a 2014 civil rights consent decree affecting adults with developmental disabilities.

Other advocates made the broader statement that that paying a living wage to caregivers of all vulnerable populations is a moral imperative. Raising pay to attract more workers also is essential to guaranteeing the civil rights of vulnerable people, no matter what their disability, they said.

The Integration Mandate of the Americans With Disabilities Act, (ADA), reinforced by the 1999 Olmstead decision of the U.S. Supreme Court, says that those with disabilities have a right to receive the services they need to live regular lives in their communities.

If the state does not adopt a comprehensive Olmstead plan to provide integrated, community-based services to all people with disabilities, it will remain vulnerable to more litigation like the ADA complaint of the U.S. Department of Justice (DOJ) which led to the 2014 consent decree, said a spokesman for the Rhode Island Developmental Disabilities Council.

As it is, Rhode Island’s Director of the Division of Developmental Disabilities acknowledged at the House Finance Committee hearing that the state has a “difficult relationship” with the U.S. District Court and the DOJ over the status of implementation and the unfinished work ahead as the agreement nears its conclusion in 2024.

I/DD Population Sitting At Home

Seven years after Rhode Island signed the consent decree, agreeing to end the segregation of sheltered workshops and day care centers, many adults with developmental disabilities are no better off.

For example, Jacob Cohen of North Kingstown, who once had a full schedule of activities in the community, now gets only three hours a week of support time, his father, Howard, told the Finance Committee in written testimony.

At AccessPoint RI, a Cranston-based service agency, 50 of 109 supervisory and direct care jobs are vacant and 60 out of 160 clients are not getting any daytime services, according to the executive director.

The consent decree calls for 40 hours a week of employment-related supports and other activities in the community.

A consultants’ report commissioned by providers says the private service providers lack 1,081 of the 2845 full time direct care workers they need to carry out the requirements of the consent decree. COVID-19 exacerbated the workforce shortage but did not cause it, the consultants said. The consultants said that depending on living arrangements, persons with developmental disabilities have experienced a reduction in services ranging from 49 percent to 71.6 percent, with those in family homes having the severest cutbacks.

The McKee administration’s proposed $15.75 hourly reimbursement rate would represent a wage hike of about $2.50 or more for direct care workers – roughly 20 percent.

The state does not set private-sector wages directly but reimburses the private agencies for wages and employment-related overhead, like taxes and workers compensation. Some providers pay a little more than the current hourly minimum of $13.18, by subsidizing wages with revenue from other types of services.

In addition to raising direct care worker pay, the proposal would raise reimbursement levels for supervisors’ wages from $18.41 to $21.99. There would be no raises for support coordinators or job developers, who are paid $21.47 an hour. Nor would those in a catch-all “professional” category receive a pay increase. They are paid $27.52 an hour, according to a presentation the House Fiscal Advisor made to the Finance Committee.

The overall wage increase would cost a total of $39.7 million in federal-state Medicaid funding, including $16.8 million in state revenue and $22.9 million in federal reimbursements.

Of the state’s share of the cost, $13 million would be re-directed from a $15 million “transition and transformation fund” for developing systemic reforms aimed at quality improvement and the reimbursement model that pays private providers. The reimbursement model was redesigned a decade ago to favor segregated care and has not been fundamentally changed since then.

Robert Marshall, the spokesman for the Rhode Island Developmental Disabilities Council, warned that gutting the so-called “transition and transformation fund” could heighten the state’s non-compliance with the consent decree and leave it open to additional federal action.

House Fiscal Office

With the governor’s proposed raises included, the allocation to the private developmental disabilities system would jump from $260.3 million in federal-state Medicaid funding in the current fiscal year to $297.7 million, an overall increase of $37.4 million, according to the presentation of the House Fiscal Officer, Sharon Reynolds Ferland.

Tina Spears, executive director of the Community Provider Network of Rhode Island (CPNRI), a trade association which negotiated the wage hike with the state, called it a “notable first step in rebuilding the workforce serving people with intellectual and developmental disabilities.”

SPEARS CPNRI

“This wage increase will improve the lives of both those who do the work and the families who are served by that work,” she said in written testimony.

But Spears, who had pressed for a rate of $17.50 an hour, told the committee that the state’s final offer of $15.75 does not make it competitive in attracting new workers.

Complicating the salary issue, the administration expects the private agencies to accept group home residents from the state-run developmental disabilities system, which it plans to phase out. The current allocation of $29.7 million for state-run group homes, named Rhode Island Community Living and Supports (RICLAS) would be cut to $9 million in the next budget.

Both the unions representing RICLAS workers and the private providers have expressed skepticism that the privatization is feasible.

The budget calls for the reduction of 50 RICLAS positions. RICLAS pays workers a starting rate of about $18.55 an hour, more than $5 above the current entry-level pay in the private system, and about $2.80 above the proposed new private-pay rate.

On July 1, minimum wages in Connecticut will increase to $16.50 an hour for private-sector direct care workers in the first year of a two-year contract between that state and the Service Employees International Union (SEIU). The rate will jump to $17.25 on July 1, 2022.

Massachusetts will pay direct care workers at privately-run agencies a minimum of $16.10 an hour beginning July 1, the final year of a three-year contract with another branch of the SEIU, according to a salary schedule on a Massachusetts state website related to “personal care attendants.”

Massachusetts already siphons off some of Rhode Island’s best caregivers, said Michael Andrade, President of CPNRI and CEO of Pro-Ability at the Bristol County ARC.

Ruggiero Capitol TV

During the hearing, Rep. Deborah Ruggiero asked Jonathan Womer, Director of the Office of Management and Budget (OMB), to tell her who has been leading the state’s response to the consent decree during the last few years and explain why there has been “so little progress.”

She also wanted to know why she’s hearing reports that the state is “not in very good standing” with the Court or the DOJ and what is being done to change that situation.

Womer introduced Kevin Savage, who has been in charge of the Division of Developmental Disabilities since last July.

“While we haven’t met a number of benchmarks for getting people to work” in the community, Savage said, “there are no longer any sheltered workshops in Rhode Island.”

SAVAGE

“That’s a major achievement of the consent decree,” Savage said. He added that because of the pandemic, meeting goals for employment and community integration has been “extremely challenging,”

During state budget preparations, which began last fall during great economic uncertainty, OMB asked state agencies to submit proposals with 15 percent reductions in their spending plans. The economic outlook has brightened considerably since then.

In January, Chief Judge John J. McConnell, Jr. of the U.S. District Court said Rhode Island must raise direct care wages to $20 an hour by 2024 to attract more direct care workers to Rhode Island providers, who do the work in the field necessary to enable the state to comply with the consent decree.

Two months later, in March, the governor submitted a budget proposal that offered no raises. Then came court-ordered negotiations, which resulted in the administration’s proposal for the $15.75 rate, as well as a separate budget amendment that would comply with another court order, making the developmental disabilities caseload part of formal, consensus-building state budget preparations in November of this year.

During the budget hearing, Savage said, “We are having a difficult time in our relationship with the Court. We do want to repair that.”

“We have tremendous respect for the judge and tremendous respect for the court monitor. We work with some of the best providers you can work with, so it’s really not a matter of not wanting to work with the providers or the court monitor,” Savage said.

The negotiations took too long, he acknowledged.

“We need to pick up the pieces and move forward faster,” he said, engaging the community “much more robustly than we have.”

“We need to get to get to $20 by 2024,” to “stabilize the workforce,” and make other reforms as part of a court ordered, comprehensive three-year compliance plan, he said.

Rep. Alex Marszalkowski, D- Cumberland, chairman of the Human Services Subcommittee of the House Finance Committee, asked why the wage increases would apply to group home workers when the consent decree is limited to issues related to daytime services.

Savage responded that “if we stabilize one part of the workforce, we destabilize the other; the only path is to stabilize the entire system.”

Emphasis on Civil Rights

Later in the hearing, Spears, the CPNRI director, emphasized that hard-working caregivers deserve a living wage and noted that “civil rights protections” are at the heart of the 2014 consent decree. “It’s essentially a corrective action plan to resolve civil rights violations and make sure they never happen again,” she said.

She added: “We are seven years into a ten-year agreement, and there is a tremendous amount of pressure from the Court and the U.S. Department of Justice to achieve the established benchmarks.” As it now stands, the private sector cannot deliver on the compliance the state needs, Spears said.

The Chair of the Long Term Care Coordinating Council (LTCCC) and the representative of the Developmental Disabilities Council each applied a broader perspective on the budget amendments, saying the General Assembly must address the workforce and quality-of-life issues across all vulnerable populations.

Maureen Maigret, chair of the LTCCC, recommended the General Assembly use some of the current Medicaid reimbursement rate, enhanced under provisions of the American Rescue Plan Act, to raise the wages of direct care workers funded by Medicaid’s Home and Community Based Services (HCBS) to the same level proposed for those working in developmental disabilities.

“The issues facing other types of home and community-based services and residential programs are similar to providers of services for persons with developmental disabilities,” Maigret said in written testimony, citing low wages, high turnover and staff burnout, all exacerbated by the pandemic.

“And we know that almost a majority of these workers are women and persons of color whose value has historically been under-valued,” Maigret said.

“Efforts to achieve wage parity for all direct care staff working in government-subsidized Home and Community-Based Services (HCBS) is imperative if the state is to have a quality and accessible LTSS (Long Term Services and Supports) system with appropriate options for persons needing care,” she said.

Marshall, of the DD Council, said Rhode Island could use some of the one-time stimulus funding under provisions of the American Rescue Plan Act to develop an Olmstead plan, a multi-year blueprint for conforming to requirements of the ADA’s Integration Mandate.

Only seven states — Rhode Island among them - still lack such a plan, he said.

Because of the Olmstead decision, Medicaid changed the rules of Home and Community-Based Services programs to help vulnerable persons live as independently as possible at home or in home-like settings.

Marshall said Rhode Island has been in violation of Medicaid’s regulations on home and community-based services since 2014 and is “vulnerable to yet another Department of Justice lawsuit or ineligibility for federal Medicaid match.”

Judge: RI Must Expand DD Budget Or Risk Olmstead Consent Decree Noncompliance

By Gina Macris

Judge McConnell

Rhode Island will not be able to meet a 2024 deadline for complying with a 7-year-old civil rights agreement unless it begins allocating money now to attract an adequately-paid, skilled workforce to serve adults with developmental disabilities in their communities.

So says Chief Judge John J. McConnell, Jr. of the U.S. District Court in a nine-page order issued March 16 clarifying what it will take to comply with a 2014 consent decree correcting Rhode Island’s violations of the Integration Mandate of the Americans With Disabilities Act (ADA).

Five days ago, on March 11, Governor Daniel McKee submitted a state budget request to the General Assembly that does not propose any rate increase for direct care workers. These workers are employed by the private agencies the state relies on to carry out provisions of the 2014 Olmstead consent decree.

Under the current rates, providers are able to pay front-line workers an average of $13.08 an hour, or $1.58 above the state’s minimum wage of $11.50, McConnell said in the statement, which amounted to a tutorial on the issues affecting compliance.

The $11.50 rate went into effect last October, and McConnell pointed out there are bills pending in the General Assembly for additional raises.

“The functions and responsibilities of staff who provide direct support to adults who have intellectual and developmental disabilities are significantly more challenging than many minimum wage positions,” McConnell said.

In several states the pay of direct support staff is considerably higher than minimum wage, he said. Utah, for example, has set its direct care rate at 72 percent above minimum wage.

He drew a straight line connecting low wages, high turnover, and an inability of the provider agencies to find a well-trained, stable workforce capable of providing an array of services that will enable adults with developmental disabilities to live meaningful lives in their communities in accordance with the ADA’s Integration Mandate.

One in five jobs in private agencies are currently vacant, and agencies report an average annual turnover of about 30 percent, according to a survey by an independent court monitor conducted in February. In addition, 80 percent of adults and families who direct their own programs said they had difficulty finding staff, and 68 percent said they had difficulty retaining staff, according to the monitor.

McConnell’s latest statement underlined an order he issued Jan. 6 which requires the state to raise workers’ wages to $20 an hour by 2024 as part of a comprehensive overhaul of services from center-based group care to one-on-one or one-to-two staffing in the community.

He said the state must collaborate with service providers and advocates in the community to develop a three-year budget strategy for compliance with the consent decree and give him monthly progress reports at the end of April, May, and June.

The judge cited a 2020 report of the state’s own consultants that concluded the provider agencies are financially “fragile and profoundly undercapitalized.”

McConnell also felt it necessary to say that the “entirety of the State” is a party to the consent decree, not merely the state agencies identified in the document.

The McKee administration and the leadership of the House and Senate had no immediate comment on McConnell’s order.

The judge reminded the state that the findings of the U.S. Department of Justice in 2014 cited “multiple concerns” about the state’s failure to comply with the Integration mandate.

Among them were:

• A lack of resources

• Failure of the state’s rate-setting methodology and reimbursement model to promote integrated supported employment and day services

• The inflexibility of the state’s reimbursement model.

McKee’s budget for the fiscal year beginning July 1 includes a proposed $15 million “transformation and transition fund,” but it’s not clear exactly what that money will pay for.

There are five committees already working under the supervision of the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals on proposed administrative reforms.

But McConnell has signaled he wants the planning complete by the end of June and the implementation to begin at the start of the new fiscal year in July.

He also noted that the integration mandated by the consent decree are also required by the Centers for Medicaid and Medicare Services if the state is to continue qualifying for federal Medicaid reimbursement under the Home And Community-Based Services (HCBS) Final Rule. Like the consent decree in Rhode Island, that rule gets its authority from the Olmstead decision of the U.S. Supreme Court, which in 1999 clarified the Integration Mandate of the ADA.

“Rhode Island is seven years into the Consent Decree,” McConnell said. (The eighth year begins April 9.)

“With three years remaining, there is significant work still to be completed,” he said in conclusion.

Click here to read Judge McConnell’s order of March 16.

RI To Review "Project Sustainability" Funding Model For DD Services With Help From NESCSO

By Gina Macris

The state of Rhode Island has hired NESCSO, the non-profit New England States Consortium Systems Organization, to review the fee-for-service Medicaid funding structure used to reimburse private providers of services for adults with developmental disabilities since 2011.

The project, launched by the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH), represents a key step toward meeting the overall objectives of a 2014 consent decree which requires the state to create a community-based system of services to correct violations of the integration mandate of the Americans With Disabilities (ADA.)

The current fee-for-service reimbursement model, called Project Sustainability, incentivizes facility-based, segregated services, according to findings of the U.S. Department of Justice which led to the consent decree.

Project Sustainability, accompanied by $26 million in budget cuts effective July 1, 2011, resulted in drastic wage reductions among private service providers, but raising worker pay alone will not fix the problem.

Project Sustainability also was set up to fund staffing for groups of people engaged in activities in one place but didn’t provide for the degree of supervision or transportation needed to individualize services in the community on a broad scale, as required by the Olmstead decision of the U.S. Supreme Court. That decision re-affirmed the integration mandate of the ADA.

In sheltered settings, for example, the ratio of direct care workers to clients might have been set in the funding formula at 1 to 10, but additional staffing would be needed to support that many people in the community, according to language in the contract between NESCSO and BHDDH.

The contract says supplemental payments have been used to “address the deficiency in the payment rates.” These supplemental payments “are an increasing portion of overall payments, reflecting the inadequacy of the current rates,” the contract said.

It says BHDDDH is seeking technical assistance from NESCSO in reviewing the best strategies for achieving an integrated, individualized system of services that complies with both the consent decree and the Medicaid Home and Community-Based Services Final Rule.

The consent decree affects daytime services, with an emphasis on competitive employment for adults with developmental disabilities.

The Home and Community-Based Final Rule (HCBS) is Medicaid’s interpretation of what the ADA’s integration mandate should look like in practice. Unlike the consent decree, it addresses residential services, calling for options that enable clients to live in less restrictive settings than group homes.

BHDDH also asks NESCSO to help it develop an “optimal and balanced system of services and payments” that will promote individually-designed programs according to the preferences and direction of the consumers themselves.

As part of the overall picture, the design and oversight of individual service plans would be separated from funding and actual delivery of supports to protect the interests of consumers and comply with the HCBS Final Rule in so-called “conflict-free case management.”

The consent decree also calls for a separation between funding, case management, and delivery of services. Currently, BHDDH is responsible for both funding and case management.

The total contract, designed for an 18-month period, will cost nearly $1,366,000 in federal and state Medicaid funds. That sum includes the entire developmental disabilities project, a rate review for behavioral healthcare services, and technical assistance at Eleanor Slater Hospital in connection with developing outpatient services for patients.

A BHDDH spokeswoman said Feb. 28 that the amount to be spent in the current fiscal year on the developmental disabilities portion of the project, originally set at about $400,000, will be scaled back to $200,000, because the work did not begin as anticipated in January. The fiscal year ends June 30.

There is $500,000 budgeted for the developmental disabilities work in the fiscal year beginning July 1.

BHDDH director Rebecca Boss said the department “Is pleased to partner” with NESCSO.

“NESCSO offers BHDDH the expertise of the other New England states and brings a team with background in specialized population-based needs and solutions, financial expertise, analytical depth and knowledge of federal regulation, resources and compliance requirements,” she said.

NESCSO is a non-profit collaboration among the health and human services agencies of Rhode Island, Massachusetts, Connecticut, New Hampshire and Vermont and the University of Massachusetts Medical School. Through shared information and expertise, it works to promote policies and programs that will serve the needs of New England states in a cost-effective manner, according to its website.

State Sen. Louis DiPalma, D-Middletown, the chairman of special legislative commission studying Project Sustainability, said the review of the funding model will be “pivotal” in shaping the future of the private system of developmental disability services.

“I give the department (BHDDH) credit” for moving forward with the project, DiPalma said. NESCSO, led by a former Rhode Island Medicaid director, Elena Nicolella, is held in high regard, he said.

At the same time, DiPalma said it is imperative that the review of the funding structure begin immediately and be completed in time for Governor Gina Raimondo to submit her budget proposal to the General Assembly for the fiscal year beginning July 1, 2020.

Expert testimony already given to the Project Sustainability commission made it clear that a review of the funding structure was long overdue, DiPalma said. With BHDDH already taking that step, the commission might still say that a rate review should be conducted every five years, as recommended by healthcare consultant Mark Podrazik.

Podrazik is a principal in Burns & Associates, which was hired to help BHDDH develop Project Sustainability. Testifying in November, he made it clear that the state ignored some of the firm’s key recommendations, instead shaping the funding structure through a frenzy to control costs.