Dianne Curran, RI Consent Decree Coordinator, To Leave Post Sept. 30, Citing Personal Reasons

By Gina Macris

 

                                                       This article has been updated .

Dianne Curran                        Photo By Anne Peters

Dianne Curran                        Photo By Anne Peters

Dianne Curran will step down Sept. 30 after seven months as Rhode Island’s consent decree coordinator, a post considered critical to success of the state’s 2014 agreement with the U.S Department Of Justice to reform Rhode Island’s programs for persons with developmental disabilities.

 “I am sad to leave such a competent and hard-working team that is committed to improving the lives of individuals with I/DD (intellectual and developmental disabilities),”  Curran said in a statement which cited "personal reasons" for her departure. She did not elaborate.

Curran is the third consent decree coordinator to serve since the agreement was signed in April, 2014. Curran was preceded by Mary Madden, who served from January, 2016, until the end of March of this year, overlapping Curran’s first month on the job. The first consent decree coordinator was Andrew McQuaide.

A spokeswoman for the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) said there is an interim plan to cover the duties of the consent decree coordinator. The spokeswoman, Jenna Mackevich, confirmed Curran's upcoming departure on behalf of the Executive Office of Health and Human Services (EOHHS), where Curran reports to Health and Human Services Secretary Eric J. Beane.

Until the state finds a qualified successor to Curran, an cross-agency Consent Decree Management Team will shoulder the coordinator's duties, according to an EOHHS spokeswoman, who elaborated on the interim plan. The inter-agency team includes various division leaders and legal staff, who meet regularly, said the spokeswoman, Ashley O'Shea.

The position of the consent decree coordinator is very important in ensuring cooperation among state agencies with responsibilities in implementing the agreement, according to an independent federal court monitor, Charles Moseley. Historically, the various agencies of state government have had the reputation of acting as bureaucratic “silos.”

In addition to BHDDH, the Rhode Island Department of Education and the Office of Rehabilitation Services in the Department of Human Services share responsibility for transforming a system of sheltered workshops and adult day care centers into a network of integrated, community-based services, with an emphasis on regular jobs and personal choice, to comply with the ADA.

With Madden’s arrival early in 2016, Moseley successfully pressed the state to move the position of consent decree coordinator out of BHDDH to the EOHHS, which has authority over both ORS and BHDDH.

Curran has a long and varied career as a disability rights lawyer dating back to 1980, both in Rhode Island and Massachusetts. She is a former deputy director at Rhode Island Legal Services and former supervising attorney at what is now the RI Disability Law Center. Working much of the last 20 years in  Massachusetts,  she was deputy general counsel in the Department of Social Services and then held the same position at the Department of Elementary and Secondary Education

This article has been updated to include details of the interim plan for the state to keep up with the duties of the consent decree coordinator while the state searches for a replacement to Dianne Curran.

Judge McConnell: Consent Decree Progress Should Not Distract State From Long Road Ahead

By Gina Macris

U.S. District Court Judge John J. McConnell, Jr. says Rhode Island has made considerable progress in laying the groundwork to comply with a three year-old consent decree aimed at improving the lives of adults with developmental disabilities.

But that progress should not distract all concerned from “how far we have to go,” McConnell said.

In a quarterly review of the case on March 10, McConnell called attention to the remarks of the U.S. Department of Justice (DOJ), Nicole Kovite Zeitler, who spoke of the state’s progress and the unrealized potential of the consent decree to transform lives for a generation. 

“From where we were a year ago the work the state has done is commendable,” Zeitler said, “but the ultimate goal of the 2014 agreement is the transformation of services” for adults with developmental disabilities.

“These people have goals, just like anyone else,” Zeitler said.

Yet, a recent review of the day services typically offered adults with disabilities conveys a lack of purpose.  “There’s a feeling that attending a day program is just something people do,” she said.

The DOJ is committed to ultimate compliance with the consent decree, Zeitler said, but the decree means more than financing plans for services.  

Rather, the effort must put individuals’ goals and dreams at the center of the process and incorporate ongoing quality assurance practices to ensure continued compliance with the consent decree, she said.

Zeitler referred to a review of the day services of 21 adults by consultant William H. Ashe that was incorporated into a recent report to the court by the independent monitor in the case, Charles Moseley.

In many cases, Ashe found the signposts of individualized or “person-centered’” planning absent.  The service planning process required by the state  ”feels rigid and automatic,” Ashe noted. ”The ISP (individual service plan) for a person this year may often look remarkably similar to the one that was done last year. The funding that agencies receive is based on assessed ‘functioning level’ and not based upon what people may want or actually need,” Ashe said.

”Agencies are often in a situation where their staffing levels prohibit them from individualizing supports to the extent that is necessary to really implement services that are based upon real choice,” he said.

The monitor, Moseley, has given the state notice in a recent report to the court that he wants changes in the funding and planning process that meet the “person-centered” requirements of the consent decree. The state must give him progress reports quarterly, beginning April 1.

McConnell asked why the percentage of young adults finding employment was so low – only 22 percent. Moseley said the percentage dipped as the state complied with a request he made last fall to fully identify all eligible individuals who have left school since 2013.

The count of the so-called “youth exit” group initially stood at 151 young adults with developmental disabilities. By November the figure had jumped to 501, and, now is 516, Mary Madden, the state’s consent decree coordinator, told the court.  

The number of young adults with jobs is 109, according to the latest reports of the state to the monitor.

Referring to a provision of the consent decree decree which requires “all” young people to have jobs the same year they leave school,  McConnell asked why the employmentbenchmark for young adults is so “aggressive”.

Zeitler said the goals were designed that way because the generation going through school now is learning the skills necessary to prepare for adult life.

These young people have the most to gain from the consent decree and the most to lose without it, Zeitler said. They know their own potential, but under the old system they would spend years in isolation from the larger community, she said.

The 2014 consent decree settled findings of the DOJ that the state relied on sheltered workshops and segregated day programs in violation of Title II of the Americans With Disabilities Act, which was reaffirmed in the Olmstead decision of the U.S. Supreme Court in 1999. The Olmstead decision said that individuals with disabilities have a right to receive services in the least restrictive environment that is therapeutically appropriate, which is presumed to be the community.

The Rhode Island decree is not the first Olmstead enforcement action in the country, but the first one that addresses daytime programs that segregate adults with disabilities. Because they ard the DOJ.

A year ago, the state had made virtually no effort to implement the consent decree and lacked the financing, data, and staff to respond to requests made by the monitor. After an evidentiary hearing in April, McConnell issued a multi-faceted order which put the state on short deadlines for responding to discrete tasks – or face contempt proceedings.

So far, the order has brought results:  $11 million more in federal-state Medicaid funding, a larger staff to work on policy changes, and better cooperation and communication among the agencies responsible for implementing the agreement – the Department of Behavioral Healthcare, Developmental Disabilities, the Office of Rehabilitation Services, and the Rhode Island Department of Education.

One part of McConnell’s order has led to an incentive program for service providers to find jobs for their clients and help them stay employed. That program has placed 20 new hires since January, although Zeitler said the state needs to have “frank discussions” with service providers about continued gaps in job placement targets in two of three segmentsof the population represented by the consent decree.    

Moseley, the monitor, has followed McConnell’s lead in adopting short-term deadlines for specific tasks he has assigned the state. One such inquiry led to the identification in November of young adults with autism or multiple disabilities who hadn’t previously been counted as part of the consent decree population. That’s what boosted the so-called “youth exit” population to more than 500.

More recently, Moseley has enumerated dozens of tasks relating to the individualization of services, better internal quality improvement efforts, methods of funding, employment, and other consent-decree issues, along with short-term deadlines for responses.

Jennifer Wood, General Counsel to the Secretary of Health and Human Services, the head of the state’s response to the consent decree, said Rhode Island now has the bureaucratic “infrastructure” to delve into the actual service delivery system.  “Person-centered planning is at the heart of that,” she said.

The next court review will be scheduled for mid-July, but McConnell said he wants to receive interim progress reports from Moseley.  McConnell also noted that from time to time, he receives letters from parents and makes them part of the case file, which is a public record. 

Related articles: 

"RI Still Lags in DD Consent Decree Compliance, But Shows Progress in Number of Job Placements"

"Monitor Seeks Changes In BHDDH Funding Methods to Satisfy Consent Decree"

"Monitor Wants Mountains of Details to Push Compliance With RI Olmstead Consent Decree"

RI Still Lags in DD Consent Decree Compliance, But Shows Progress In Number of Job Placements

By Gina Macris

Rhode Island appears to be meeting almost 60 percent of court-mandated goals in placing adults with developmental disabilities in jobs paying at least minimum wage, according to newly-released figures which track the state’s progress through Sept. 30 of 2016.

The state had found jobs for 363 individuals, or 58.8 percent of the 651 placements required at that time, according to compliance figures the state submitted to an independent court monitor in accordance with a 2014 federal consent decree that requires community-based day services to correct violations of the Americans with Disabilities Act.

For one group of individuals protected by the consent decree- those in segregated day programs – the state has made triple the number of required placements. But for other groups, the going has been slower. Only about 22 percent of special education students "exiting" high school got jobs, far short of the 100 percent employment goal. The figures for a third group - adults who had been in so-called sheltered workshops – show 87 percent compliance with the benchmark for job placement at the end of September.

Source: State of Rhode Island 

Source: State of Rhode Island 

Figures at the bottom of the table, set against a pale blue background, allow comparisons among the latest available job placement numbers Sept. 30 and those at the end of the first and second quarters of 2016.

It’s not surprising that the state does not meet overall compliance with the consent decree, Rhode Island began focusing on compliance only in the last 12 months – two years after the agreement went into effect,

In May, 2016, Judge John J. McConnell, Jr. of U.S. District Court reinforced the consent decree with an order addressing numerous shortcomings, including an inability to even get an accurate count of the number of individuals protected by the agreement.

McConnell required the state to create a “live” database, always up-to-date, on the population protected by the consent decree – at latest count 3,456 teenagers and adults – that the monitor and the U.S. Department of Justice could use to gauge compliance.

Such an up-to-the-minute database is in the works but has not yet been completed. In the interim, the  Executive Office of Health and Human Services has coordinated a cooperative effort involving three state agencies and the Sherlock Center on Disabilities at Rhode Island College to connect different sources of data so that the state can make detailed reports to the court, albeit with a time lag. The three state state agencies participating in the combined data effort are the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals; the Department of Education, and the Office of Rehabilitation Services.

The ten-year consent decree has progressively stiffer requirements, with the latest deadlines occurring Jan. 1. It is not yet known how well the state has done against these most recent benchmarks.

 Charles Moseley, the monitor,  has concluded that the state has “significantly improved its ability and capacity to gather, aggregate and analyze” data required by the consent decree.

Moseley submitted the state’s figures to McConnell March 3, supplementing two earlier reports. One made recommendations on stepping up job placements and other aspects of compliance. .The other made sweeping recommendations that would put emphasis on the needs of of individuals in the funding process for developmental disability services and would reorganize operations of the state Division of Developmental Disabilities to incorporate a seamless and continual quality improvement effort. Both reports have implications for greater costs.

All of Moseley’s recent reports are likely to come up during the next open-court hearing on the consent decree, now scheduled for 10 a.m. March 10 before McConnell. (Two hearings in January and February had been cancelled.)

The progress the state reported as of Sept. 30 reflect the efforts of privately-run service providers who for years have been working under significant financial and bureaucratic constraints that make it difficult for them to hunt for jobs for clients and support them once they find employment. 

Front-line workers make poverty-level wages, despite a pay increase approved by the General Assembly in 2016. The legislature also set aside $6.8 million to pay bonuses for new job placements and job retention and for specialized training completed by direct care workers. But that program was still on the drawing boards when the latest data was collected.

In his report on data, Moseley noted that the state did not reach goals for career development plans and benefits counseling. Benefits counseling is necessary to ensure individuals make informed choices about the way particular jobs would affect their government benefits, like supplemental security income (SSI.) Career development plans consider long-range goals, and the intermediate steps necessary to achieve them, in a way that aligns activities with individuals’ needs and interests.

Overall, about 43 percent of the entire consent decree population had career development plans. In one of the earlier reports to McConnell, Moseley was critical of the quality of those career development plans. 

Source: Charles Moseley, U.S. District Court Monitor

Source: Charles Moseley, U.S. District Court Monitor

In the table above, "youth transition" refers to high school special education students likely to qualify for adult services, and "youth exit"refers to adults who have left school since 2013. Other categories refer to older adults who historically have been in segregated day programs or sheltered workshops. The letters CDP are an acronym for career development plan. 

Another table, below, shows that the state had complied with a requirement to provide benefits counseling to young adults with jobs but had failed to similarly advise more than half of older adults who had obtained jobs after 2012. The letters BP are an acronym for benefit plan.

Source: Charles Moseley, U.S. District Court Monitor

Source: Charles Moseley, U.S. District Court Monitor

The state reported that those who had jobs worked an average of nearly 12 hours a week and made an average of about $10.00 an hour. The consent decree says the average work week should be 20 hours.  

The consent decree requires the state to integrate adults with developmental disabilities in their communities to comply with the 1999 Olmstead decision of the U.S. Supreme Court, which reaffirmed the rights of citizens with disabilities to receive services in the least restrictive environment that is therapeutically appropriate under provisions of the Americans With Disabilities Act. In Rhode Island in 2014, the U.S. Department of Justice found an over-reliance on sheltered workshops paying sub-minimum wages and on isolated day programs that did not offer their clients purposeful activities.

Click here for the monitor's data report.

Click here for the data the state submitted to the monitor.

 

 

Monitor Wants Mountains of Details to Push Compliance With RI Olmstead Consent Decree

By Gina Macris

If the state of Rhode Island were building a network of roads to help adults with developmental disabilities get to their jobs, town libraries, or classes at the local Y, then construction could be described as well underway.

But that’s not to say the infrastructure is complete and travelers are rushing to use these new highways on their way to richer lives. 

This image of a work in progress serves, in effect, as a snapshot of what a federal court monitor sees in an ongoing transformation of the state’s developmental disability service system. 

In a recent report to U.S. District Court Judge John J. McConnell, Jr., Charles Moseley says Rhode Island has made solid gains in its efforts to comply with a 2014 consent decree enforcing the Olmstead decision of the Americans with Disabilities Act, which requires disability-related services to be offered in the least restrictive setting that is therapeutically appropriate. And that setting is presumed to be the community. 

The state has increased funding by $11 million, filled key leadership posts, offered more training, and put into place policies and programs to help adults with developmental disabilities find jobs and enjoy activities in their communities.

Priorities for Compliance 

 While acknowledging these efforts, Moseley indicated the state is still out of compliance with the consent decree. Among his top recommendations, Moseley said the state must:

• Strengthen supported employment for young adults up to the age of 25. Job placements for young adults are “significantly below consent decree requirements,” he said.

• Increase funding to expand supported employment and community-based, integrated day services during the next fiscal year, beginning July 1, and in future budgets. The state “needs to take steps to ensure additional funding is available to address caseload increases” related to special education students moving to adult services, he said.

• Increase providers’ capacity to provide services. “Provider agencies do not yet have the numbers of trained staff needed to ensure the provision of services and supports required by the consent decree” Moseley said.

• Eliminate service delays.

Moseley says the Division of Developmental Disabilities (DDD) and the Office of Rehabilitative Services (ORS) have said that service providers can meet the need for employment and community –based supports required by the consent decree.

“But families of individuals with IDD (intellectual or developmental disabilities) who are requesting DDD services for the first time have reported to the monitor that access to needed supports has been prevented or delayed by providers who refuse to accept new referrals,” Moseley said.

“Provider refusals appear to be directly linked to DDD payment rates and rate setting practices,” he said.

Twenty-two of the state’s 36 private service providers have agreed to participate in a program of one-time bonuses paid for staff training, job placements, and job retention, according to state officials. 

That initiative is still accepting applicants and cannot yet be evaluated, Moseley said, although it is expected to ease the service gap over time.

Moseley found it “important to note,” however, that the state has not offered any other kinds of incentives to agencies that chose not to apply to the incentive program, or to providers that did not receive start-up costs to convert sheltered workshops and day programsto community-based operations.

Moseley is asking the state to give him an accounting by Feb. 28 of the number of clients who were refused or faced service delays between July and December of 2016, including the names of the agencies, the reasons given, the length of any delay, and the state’s recommendations for improving access to services.

He also gave notice that he will want a similar report for the three-month period between January and March, as well as another update at the end of June to use as a guide in determining whether recent initiatives put into place by the state are having a positive impact.

State is Playing Catch-up

Moseley submitted a 48-page report to McConnell Jan. 25 in anticipation of a hearing Feb. 14 on the status of the consent decree.

The state’s positive momentum, supported by the $11-million budget increase, is all the more significant because most of it has been accomplished in the year since McConnell became personally involved in the enforcement of the consent decree in January, 2016.

After McConnell signaled he would take the bench on the case, the direct day-to-day supervision of the developmental disabilities division has shifted from the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals to Jennifer Wood, Deputy Secretary of the Executive Office of Health and Human Services.

Even though Wood has put efforts to comply with the consent decree into overdrive, the state is still playing catch-up with the progressively stiffer requirements of the highly prescriptive agreement, which was marked by two years of inactivity at the outset.

The consent decree, signed April 8, 2014, has a ten-year term. At the end of 2015, seeing little progress, the U.S. Department of Justice and the court monitor asked McConnell to take the case under his wing.

During the most recent hearing, in September, 2016, the state avoided contempt proceedings for failing to hit two targets. One of them, the disbursement of raises for direct service workers, was accomplished Oct. 1. The other was the lag in employment of young adults – a problem that has only grown bigger.  At the same time, McConnell said he relied on Moseley to hold the defendant’s “feet to the fire.”

Moseley Wants More Information

Even at the September hearing, Moseley was digging deeper. He pressed the state to better identify young adults and high school special education students who should be counted as members of the consent decree population and enjoy protections designed to prevent them from living lives of isolation.

Moseley’s report relies on data available as of Oct. 31, but he says the state subsequently informed him that the count of young adults who left school since the 2013-2014 academic year has increased by 350, from 151 to 501. 

The report says 29 of these young adults have received job placements, a number that is more than six months old. The consent decree required “all” members of this group to have at least part-time jobs by July 1, 2016.

The monitor continues to press DDD, ORS, and the Rhode Island Department of Education (RIDE) for more detailed information on several areas of implementation where he sees the state lagging.

By Feb. 28, Moseley wants reports on:

 Staff Training

• a plan outlining how DDD and ORS will provide the monitor regular updates on appropriate training for direct service workers at various agencies who provide daytime services. The current number of trained staff statewide, 396, is too low, he says.

Average Hours Worked

• a plan and strategy for increasing the average number of hours per week worked by individuals in supported employment. The current weekly average, 8.6 hours, falls far below the average 20 hours specified in the consent decree.  Implementation of the plan should begin March 1, Moseley says.

Career Development Plans

• an umbrella “operational plan” for 1) expanding critically-needed training for professionals and families on career development,  2) ensuring more than 3,000 individuals protected by the consent decree have high quality career development plans by June 30, and 3) making provisions for regular updates to the monitor on this topic beginning April 1. Currently, 774 individuals have career development plans, according to Moseley’s data.  These plans are intended not only to describe individualized long-term goals, but to include strategies and a sequence of real-life activities for helping individuals work toward those targets. Moseley said there are signs such details are lacking from many existing career development plans.

High School Internships

• data from RIDE and ORS showing the number of high school special education students who participate in at least two trial work experiences, each lasting a minimum of 60 days. RIDE has indicated it is keeping track of these numbers but has yet to provide the monitor with the information, Moseley says.

• data from DDD showing implementation of a so-called “transition timeline”, including notifications to families and other activities involving special education students in high school that prepare them for adult living.

Benefits Counseling

• a report from DDD on how it will ensure individuals deciding on jobs receive counseling about the way their earned income might affect the government assistance they receive, as well as evidence that the counseling is covering the required information. The monitor found that only 65 people had benefits counseling last June 30, the latest date for which statistics were available.

Moseley also noted that the state has developed a process for individuals to seek a variance if they want to opt out of employment, but no one has applied for one. He said he have more to say about the variance process by the end of the month but wants recommendations from the state by March 31 on ways to improve the variance process.

Employment First Task Force

Moseley addressed the future of the Employment First Task Force, saying it “has the potential to provide an independent and meaningful role in supporting the ability of the State to accomplish the reforms identified by the consent decree." 

“But change needs to take place if the task force is to achieve its full potential,” he said.

The consent decree intends the task force as a bridge between the community and the government, or as Moseley put it, “an independent, voluntary group of advocates and stakeholders who are not directly involved in state agency operations.”

While the consent decree says the group should make policy recommendations, it doesn’t say what areas the task force should research, or to whom it should make its recommendations, said Moseley. He also noted that it has no administrative staff or oversight from any state agency.

Moseley said he wants some changes in the task force “without compromising the separate and independent voice of advocates and stakeholders.”

Ultimately, he wants the task force to make annual reports for the monitor, the state, and the public on barriers to implementing the consent decree and ways to overcome them.

Moseley called on EOHHS to give the task force some staff support. And he asked Kevin Nerney, the task force chairman, and Jennifer Wood, the Deputy Secretary of EOHHS, to convene a small work group to map out the respective roles and responsibilities of the state and task force members and to report back to him by Feb. 28. 

Click here to read the entire monitor's report.