Judge, DOJ Praise RI's Compliance Efforts In DD Case; Contempt Hearing Avoided, For Now

By Gina Macris

The state of Rhode Island has done more in the last six months to comply with a federal consent decree aimed at ending the isolation of adults with developmental disabilities than the previous state administration did in the first two years of the agreement. 

That assessment came from the U.S. Department of Justice Sept. 16 in a conference on the status of the 2014 agreement before U.S. District Court Judge John J. McConnell, Jr.   

Because of those efforts, McConnell deferred, for now, a request by DOJ lawyer Nicole Kovite Zeitler that he hold contempt proceedings in early October over the state’s failure to hit specific targets in the order McConnell issued last spring to force compliance with the consent decree.

By signing the consent decree in 2014, the state promised, over a ten-year period, to establish a system of community-based, integrated work and leisure activities for individuals with developmental disabilities that would replace sheltered workshops and segregated day programs. The transition is mandated by the Olmstead decision of the U.S. Supreme Court.  

While acknowledging the state’s intensive efforts, led by Jennifer Wood, Deputy Secretary of Health and Human Services, Zeitler cited two non-compliance issues: the scarcity of young adults with developmental disabilities holding jobs, and the state’s failure to distribute increased reimbursement rates to private service providers by Aug. 1 as the judge had required.  

Wood said rate increases would be implemented Oct. 1. That is the date the computer system will be adjusted to reflect a 36-cent hourly increase, from $11.55 to $11.91, in the average reimbursement rate paid to private service providers.  

Approximately 4000 workers at private agencies will get raises, retroactive to July 1, after their employers start receiving the higher reimbursements. 

Mary Madden, the state’s consent decree coordinator, elaborated on the lack of job placements for young adults. 

Of a total of 151 individuals with intellectual disabilities who left school in the 2013-2014 or 2014-2015 academic years, 99 are receiving adult services, including 79 who are receiving employment-related services and 29 who are actually employed, Madden said. 

She did not have data for the 2015-2016 academic year. 

The employment number is “not where anyone wants it to be,” Madden said.   

Of the 151 identified, 52 individuals are not enrolled for any services. 

Later, Zeitler said the notion that 52 young adults have not been connected with adult services is a serious concern. 

Charles Moseley, the independent monitor in the case, said he wanted to echo both Zeitler’s concerns and her praise of the state’s efforts so far. 

He said he “wrestled with the idea of a show-cause hearing,” a proceeding that might lead to a contempt order, but decided against recommending it, because he believes the state can work with him to plan and provide employment services. 

While McConnell noted that a missed deadline in a judicial order is a serious issue, he deferred to Moseley’s confidence that he can work things out with the state. 

“I tend to be a ‘half-full’ kinda guy,” McConnell said, explaining his decision. 

“Some may call me Pollyanna-ish,” he said, but the compliance effort put forth by the state in the last six months “deserves a compliment and a thanks.”  

McConnell said state government doesn’t move quickly, even with court sanctions hanging over its head, as they were after McConnell issued a 22-point compliance order May 18. 

The fact that the Governor and the General Assembly acted late in the legislative season to add $11 million to the developmental disabilities budget should be acknowledged, McConnell said. He also thanked Health and Human Services Secretary Elizabeth Roberts, Deputy Secretary Wood, and her administrative team. About half a dozen of them attended the hearing.  

“We wouldn’t be here if it weren’t for the Department of Justice,” McConnell continued, praising its “tenacity and advocacy in taking on an incredibly complex task for those who wouldn’t otherwise have a voice.” 

But McConnell said he wasn’t about to unfurl a “Mission Accomplished banner” just yet.  

A report that the monitor filed with the court on the eve of the hearing outlines a plan to put the state on short-term deadlines for developing employment strategies for young adults and making sure all those eligible for services are identified. The employment-related strategies are due Oct. 1. 

 Moseley gave the state until Nov. 15 to identify all young adults who have left school in the last three academic years who are eligible for developmental disability services, but he wants to hear how it will approach that problem by Sept. 30. 

The effort will require cooperation by the state Department of Education, the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals, and the state Office of Rehabilitation Services. 

Moseley has expressed concern that the state is missing those who do not have an intellectual disability but are eligible because of a developmental delay.   Depending on the individual, a young adult on the autism spectrum may fall into the latter category. 

With the average cost of services at about $59,000 a year per person, Moseley’s directive for better identification of eligible young adults has the potential to add significantly to the developmental disabilities budget. 

For example, it would cost an estimated $3 million a year to serve the 52 young adults who have been identified but who are not enrolled in developmental disability services. 

Moseley, meanwhile, reflected on concerns expressed by the DOJ about the need for quality career development planning, a newly-implemented exercise that is intended to drive thoughtful, individualized job searches. 

“Person-centered planning, person-centered thinking, is a challenge that is facing all states. It needs to be done on an ongoing basis,” he said. 

Earlier in the hearing, Deputy Secretary Wood said the new chief employment specialist, Tracey Cunningham, had personally trained more than 200 people in how to write career development plans. 

But Moseley said it’s not a matter of one training. “You have to learn it and live it,” he said. 

RI Falls Short on Supports for Young Adults With DD; Court to Hear Consent Decree Status

By Gina Macris

While Rhode Island has made progress in complying with a 2014 federal consent decree, the U.S. Department of Justice and a court monitor say some requirements have not been met, including target numbers for finding jobs for young adults with developmental disabilities.

Of 151 individuals who have left special education programs at age 21 since the 2013-2014 academic year, the state has found supported employment for only 29, according to the monitor, Charles Moseley.

This issue, among others, will get an airing before U.S. District Court Judge John J. McConnell, Jr., Friday, Sept 16 at 2 p.m.

The state exceeded modest job placement goals for adults with developmental disabilities who had been in segregated day programs and sheltered workshops in violation of the Americans With Disabilities Act, Moseley said in remarks to McConnell submitted Sept. 15.

A total of 57 adults who formerly worked in sheltered workshops have found regular jobs in the community – with support – since the consent decree was signed April 8, 2014. That figure is 7 more than required by the consent decree at this point in the 10-year span of the agreement. 

Among those who had spent their time in segregated day programs, 118 have been placed in jobs in the community, Moseley said. So far, the consent decree requires only 25 supported employment placements from the day program population.

The monitor said state officials have had trouble identifying the total number of young people coming out of high school who are eligible for adult developmental disability services.

Moseley said the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) provides adult services to 101 of 151 young people with intellectual and developmental disabilities who have been identified by the Rhode Island Department of Education (RIDE) since the consent decree was signed.  

RIDE’s figures on eligibility don’t tell the whole story, the monitor said.

RIDE’s statistics cover individuals with intellectual and developmental disability as a primary diagnosis, but Moseley said RIDE has not counted others who may also qualify.

Young adults with autism, for example, may be eligible if they have no intellectual disabilities but have developmental problems that prevent them from connecting with other people and communicating what they know and can learn.

Moseley recommended that RIDE have until Nov. 15 to work with BHDDH, the state Office of Rehabilitation Services, and the Executive Office of Health and Human Services to identify all individuals leaving high school who are eligible for adult developmental disability services, saying the total is likely to increase.

He also said he wants RIDE, BHDDH, and ORS to work together to develop a strategy and timeline by Oct. 1 for ensuring employment supports for all young adults who are identified.

Besides dealing with issues particular to young adults, Friday’s hearing is expected to cover various initiatives related to supported employment for all those who come under the purview of the consent decree, according to joint remarks filed by lawyers for the state and the DOJ.

 

Federal Court Hearing Sept. 16 Could Test RI's Compliance With DD Consent Decree

By Gina Macris

The status of Rhode Island’s compliance with a federal consent decree mandating integration of adults with intellectual and developmental disabilities is scheduled to go before U.S. District Court Judge John J. McConnell, Jr., on Sept. 16.

In response to McConnell’s active involvement in the case, which began in January, high-ranking state officials have begun an intense effort to lay the groundwork for compliance with the consent decree, which was signed in April, 2014.

On May 18 of this year, McConnell issued an order that held the state to numerous deadlines in July and August.

Whether the state has made sufficient progress over the summer may become clear during the upcoming review of the case in open court.

Prior to the Sept. 16 court session, the U.S. Department of Justice  and the independent court monitor can be expected to file written reports with the judge on their view of compliance issues, which they’ve done in the past.

They also may ask the judge to impose sanctions on the state if they believe it has not met the requirements of McConnell’s very prescriptive order of May 18.

The DOJ and Charles Moseley, the monitor, have been checking compliance with the consent decree on the basis of files they have selected from a list the state has provided of all individuals who fall under the purview of the agreement, about 3,000 people in all. The individuals are identified by a code that protects their privacy.

The case is extremely complex, with many related steps needed to achieve the long-term goal of the consent decree – to allow persons with disabilities the choice to participate as much as possible in regular employment and community activities. The agreement remains in effect until Jan. 1, 2024.

A July 1 Deadline for Supported Employment

One of those steps, spelled out in the consent decree itself, is a requirement that the state would find supported employment by July 1, 2016,  for all eligible individuals who left high school during the 2015-2016 school year. 

That population is estimated at a minimum of 74 individuals by the Rhode Island Department of Education (RIDE). 

In an interview Aug. 18, a state official could not say whether the employment requirement has been met because it does not have employment data as recent as July 1.

For now, the state is getting employment statistics from an “Employment and Day Activity Outcomes Survey” for adults with developmental disabilities that is done on a quarterly basis by the Sherlock Center on Disabilities at Rhode Island College.

The latest survey is a snapshot of what adults with disabilities were doing during their daytime hours in March, according to Jennifer Wood, Deputy Secretary of Health and Human Services.

Wood said statistics for July won’t be available until September.

Supports necessary for individuals to access regular employment vary with the needs of the person. They may include transportation, extra training that breaks down the job into small steps, or even a job coach who stays with the employee for the entire work shift. Typically, individuals with intellectual or developmental disabilities employed in the community work part time.

A Pay Raise For Direct Service Workers

During July, the state has submitted numerous documents that could have a bearing on the September court session, which is officially termed a “status conference.” 

Among the state’s filings is a progress report on what Wood has described as the “huge mathematical exercise” of delivering $5 million in pay raises- an average of $600 a year per person before taxes  – to direct service workers and job coaches.

Pay raises have been described as essential to stabilize a workforce of direct service workers who are asked to do demanding jobs for less than they would make at a fast food restaurant. Turnover ranges from about 35 percent to 80 percent annually, according to testimony before the General Assembly earlier this year.

At a recent community forum, Jane Gallivan, the interim Director of Developmental Disabilities, said workers should have checks by Oct. 1 that incorporate retroactive pay going back to the start of the current fiscal year, July 1.

The judge’s order gave the state until Aug. 1 to “appropriately increase salaries, benefits, training and supervision for Direct Support Professionals and Job Coaches.”

Performance-Based Bonus Plan Outlined

Another money issue involves government reimbursement paid to the  agencies themselves.

The state has filed a progress report with the court on plans to use $6.8 million in performance-based bonuses approved by the General Assembly in a two-phase program during the current fiscal year.

The program is initially planned to reward service providers when they place clients in jobs, after the workers have been employed for three months, and again at the six-month mark.  

These incremental bonuses would total an average of $15,750 per person, although the number of incentives and the dollar amounts may be adjusted, Wood has said. 

The state has not yet begun taking applications from providers to participate in the program, according to a spokeswoman for the Executive Office of Health and Human Services.

The incentive program is to be piloted until December with a limited number of private service providers.

The judge’s order required the state to implement the initial phase of the program by Aug. 1, and to turn in evidence that all providers have signed performance-based contracts by Dec. 31.

A Call For A New Reimbursement Model

McConnell also called on the state to implement a new reimbursement model by August 1 that is “sufficiently flexible to allow providers to be reimbursed for services rendered, including, but not limited to career exploration discovery services, vocational situational assessments, work trials, development of job seeker profiles, job search and placement, job training and support, support coordination, and transportation services.”

There is similar language in the consent decree, which specified that providers should be paid for job-related and job counseling work that is “not face-to-face with the client.”

Although performance bonuses will be an added “layer” of payment to service providers in the incentive program,  according to Wood, she has said that the current reimbursement model will remain in place.


“The unit service model is the unit service model,” she said in a recent interview.

For daytime services, this model requires providers to document the time workers spend with clients, face to face, in 15-minute increments. Providers are not paid for time clients are absent for any reason, even though they must staff their programs at the same level, regardless of varying attendance.

The judge’s order says the state must now have a “new service package design” that includes up-front individual financial authorizations for supported employment services.

Wood has said specific authorizations for supported employment services will be awarded to individual clients of providers enrolled in the performance bonus program – an estimated 200 people in all.

Except for that group, clients will continue to have to trade in other types of authorizations, like generic day services, to get employment-related supports, she said.

The State's Other Progress Reports

To comply with other requirements of the court order, the state has submitted:

  • ·An overall project management plan involving the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH), RIDE, and the Office of Rehabilitation Services (ORS) in the state Department of Human Services
  • ·A transition timeline covering services to young people with developmental disabilities aged 14 to 21, including details on which agency and the type of worker who will provide the respective supports. 
  • A comprehensive communications plan, including details on relaying the status of pending applications for adult developmental disability services to applicants and their families.

There are now 224 pending applications for adult services, a slight reduction from a backlog of about 237 reported in mid-May.

As of last Friday, however, eligibility workers had screened all but four of the 224 applications and assigned them to one of three categories; “likely eligible, likely ineligible” or “need further documentation,” Wood said.

This screening process sets the stage for decisions on applications in the first two categories to be made within 30 days, she said, enabling the state to retire the backlog by the end of September.

The screening also enables eligibility workers to promptly notify those who need to submit more information. 

In the past, those who needed to gather additional documentation might not have known it until their cases got to the top of the pile and were reviewed by the eligibility workers – an indefinite time period. 

The initial assessment makes the decision-making process much more efficient, Sophie O’Connell, a spokeswoman for EOHHS, said in a follow-up email.

EOHHS, which has taken over management of the Division of Disabilities at BHDDH since the beginning of the year, has heightened its oversight of the application screening process during the summer and used “data and performance management to keep our efforts on track,” O’Connell continued.

“The team met every day in the morning and the afternoon to set goals, review progress and problem solve as needed” during the screening process, she said.

At a hearing in April, the DOJ presented evidence that some individuals turning 21 were waiting extensive periods of time to receive notice of eligibility for adult services and then had trouble finding programs suited to their needs.

The consent decree requires that community-based services, including supported employment, be in place for individuals with developmental disabilities when they reach the age of 18. 

State law also says that individuals with developmental disabilities are eligible for adult services at age 18, although as a practical matter, it is not uncommon for them to remain in high school until age 21.

Nevertheless, the consent decree anticipates a seamless and individualized transition between school and the adult world.

McConnell will hear the status of consent decree compliance at 2 p.m. Sept. 16 in Courtroom 3 on the second floor of the federal courthouse on Kennedy Plaza in Providence, according to a notice in the case file. 

 

DOJ Seeks up to $1 Million a Year from RI For Consent Decree Violations; State Objects

By Gina Macris

The U.S. Department of Justice is seeking penalties of up to $1 million a year from the State of Rhode Island if it does not move immediately to provide the job-related support services and day community programs for adults with developmental disabilities like it promised two years ago.

Employment-related services are at the heart of a 2014 consent decree in which the state agreed to shift away from reliance on sheltered workshops and segregated day programs and instead move toward integrating adults with developmental disabilities into the larger community. 

After two years of“failed outcomes and missed deadlines,” the state has shown that “compliance in this case requires accountability measures, not just deadlines,” according to a proposed order drafted by DOJ lawyers for the review of U.S. District Court Judge John J. McConnell, Jr. 

 In response,  Marc DeSisto, lawyer for the state, called the DOJ order a “pre-determined contempt sanction ” that denies the state procedural safeguards, including a provision in the consent decree that allows the state to show it put forth its“best efforts,” but failed to comply because of factors beyond its control. 

The state did present evidence of its efforts in a hearing April 8. The DOJ argued in its request for sanctions that the “hearing revealed– and the state admitted – that it has only been through this Court’s continued attention and involvement that the state has taken any real steps toward compliance.”

The Justice department lawyers said the financial sanctions will “facilitate compliance” by addressing a barrier the state itself has identified – lack of funding. 

Without the Consent Decree Compliance Fund to provide “consequences for violations, the proposed order could end up being just another plan that the state fails to implement.” according to the DOJ filing. 

The judge has not yet responded to the DOJ proposal, submitted May 6, and DeSisto’s response, filed May. 12. 

McConnell made it clear from the bench just two weeks ago, however, that he would take “swift and dramatic” action to enforce compliance, holding the state responsible without distinguishing between the Governor and the General Assembly. 

The General Assembly is heading into final budget deliberations during the next three to four weeks.  The May Revenue and Caseload Estimating Conference has projected that the state will have $47.5 million more in revenue than Governor Gina Raimondo counted on in February, when she submitted a combined $9-billion fiscal plan for the remainder of the current fiscal year and the next one.

It remains unclear how much money the state needs to correct a structural deficit in the developmental disabilities budget and keep pace with the requirements of the consent decree during the next fiscal year. 

Raimondo has proposed an additional $24.1 million for developmental disabilities through June, 30, 2017, with $19.3 million of that total coming from reductions in residential costs. So far, very little of those savings have materialized, according to information the state Department of Behavioral Health, Developmental Disabilities and Hospitals (BHDDH) provided to the Senate Finance Committee about three weeks ago.

The savings depend on voluntary moves by some 300 group home residents into shared living arrangements with families throughout the state. Shared living has been available in Rhode Island for about 10 years, with 267 individuals taking that option at the end of the last fiscal year..Since July 1, 2015, the number of shared living arrangements has increased by 21, .according to the most recent figures made public by BHDDH.

Even if the added $24.1 million can be assured and the General Assembly approves Raimondo’s request, it is not clear whether that sum would be enough to satisfy the requirements of the proposed court order

 Neither the latest DOJ filing nor the consent decree itself puts a number on the cost. The decree says only that its requirements will be “fully funded.”

The proposed order takes a highly prescriptive approach, setting out a series of detailed benchmarks and deadlines for the remainder of the year, most of them during the next six weeks. 

The DOJ’s proposal was signed by Vanita Gupta, head of the civil rights division, and other officials, including trial attorneys Nicole Kovite Zeitler and Victoria Thomas. 

For each goal the state fails to achieve on time, it would be required to contribute to the Consent Decree Compliance Fund at a rate of $5,000 a day for as long as it remains in violation. In addition, the state would be required to pay $100 a day for each person affected by the consent decree “whose employment or integrated day services are delayed or interrupted as a result of violation of this order,” according to the DOJ’s language. 

At the evidentiary hearing April 8, there was much testimony about individuals aged 18 to 21 with developmental disabilities whose whose applications for adult services languish until shortly before they turn 21, leaving insufficient time to put a good program of adult services together. When BHDDH finally determines that the young adults are eligible for funding, they often go from the routine of a busy school day to sitting at home doing nothing, according to testimony.  

Finding appropriate services from a private provider is a a challenge for families. Agencies routinely refuse new clients because BHDDH does not them the full cost of providing the necessary supports.

If the proposed order is accepted by the federal court, the court monitor in the case, Charles Moseley, would oversee compliance and determine the amount due to the Compliance Fund. The monitor, in consultation with the DOJ and the state, also would decide how the money would be used to “fund consent decree activities that directly benefit target population members,” according to the DOJ’s filing. 

DeSisto, in his response for the state, argues that the proposal improperly delegates the authority decide individual fines to the monitor, when it should be the prerogative of the Court. As proposed, he said, the state would only be able to appeal after a penalty has been assessed. 

The corrective action topics and corresponding deadlines:   

Tools For Verifying Compliance

  • May 30: The state would report to the DOJ its progress in developing a continually updated or “live” database that would allow federal officials to see how money is spent on required services for each person affected by the consent decree – at least 3400 people.

  • June 30: The state would provide federal officials access to the database or a list of entries from which the judge, the monitor, and the DOJ could select to verify compliance.
  • July 5: The monitor would give the state the list of records federal officials se;ect for verifying compliance. 
  • July 12: The state would turn over the records the federal officials sought.  For example, federal officials would seek to determine whether all young adults who left school during the 2015-2016 school year had supported employment placements in the community by July 1, as required by the consent decree.

Funding Employment-Related Services 

  • July 1: The state would implement a new model for reimbursing service providers that is flexible enough to cover the costs they incur. The current reimbursement system pays only for the time that workers spend in face-to-face contact with clients but not other activities like seeking out potential employers.
  • July 1: In funding an array of services for a particular consumer, BHDDH would earmark some funds for supported employment. Currently consumers must give up something else to get employment-related services.  
  • July 1: The state would “appropriately increase salaries, benefits, training, and supervision for employees of private agencies who work directly with adults with intellectual and developmental disabilities
  • July 1: The state would implement at least some performance-based contracts with service providers that link funding to numerical targets and implementation timelines for “quality” job placements.
  •  Dec. 31: The state would show evidence that all service providers have signed performance-based contracts.
  • Dec. 31: The state would file with the court examples of weekly activity plans used by each provider of community-based day services that has received additional funding for those supports required by the consent decree.  

Assessment of Individual Need and Funding

  • June 1: BHDDH would amend its policy for determining an invidual’s need for services and supports to make it clear that this assessment process, called the Supports Intensity Scale (SIS), remains separate and apart from considerations of individual funding levels.

  • June 30: BHDDH would file with the court agendas or meeting minutes that demonstrate that all SIS interviewers have been trained in the change to the policy.

CAREER DEVELOPMENT PLANNING

  • June 1: The state would finalize a plan for ensuring that representatives of BHDDH and the Office of Rehabilitation Services of the state Department of Human Services (ORS) consistently attend annual educational planning meetings for high school students with developmental disabilities, with an eye toward their transition to adult services
  • June 30: BHDDH, ORS and the Rhode Island Department of Education (RIDE) must implement ongoing training in the use of career development plans and must provide ongoing supervision to ensure that the plans are utilized as envisioned by the consent decree
  •  June 30: RIDE must train all school census clerks to accurately report the number of career development plans in place
  •  June 30: The state would hire a Program Developer and Employment Specialist

Communications

  • June 1: The state would finalize a detailed communications plan in which some information is disseminated to the public and other information is sought from the community.

Organizational Activities

  •  June 1: The state would finalize a detailed project management plan for consent decree activities, showing the respective responsibilities of BHDDH, RIDE and ORS. 

  •  June 1: The state would finalize a similar plan for engaging with individuals moving from school life to adult services, with the roles of each of the three agencies delineated.

The proposed order also requires the state to catch up with back pay it owes the court monitor, Moseley, and the state’s consent decree coordinator, Mary M. Madden, and to pay them on time in the future.

At the April 8 hearing, Madden said she had not been paid since she was hired in January. At the same time, Moseley, who began the job late in 2014, said he had received his first check at the end of March, 2016.