Search For RI DD Consent Decree Monitor Extended To Nov. 25; Antosh Among Candidates

By Gina Macris

A. Anthony Antosh, Director of the Sherlock Center on Disabilities at Rhode Island College, is among the candidates under consideration as the next independent court monitor responsible for overseeing implementation of a landmark civil rights decree requiring an overhaul of work and other daytime services for adults with developmental disabilities.

The search for a monitor is underway to succeed Charles Moseley, who retired Monday, Sept. 30.

In a July 23 letter to U.S. District Court Judge John J. McConnell, Jr., lawyers for the DOJ reported that they and officials of the state of Rhode Island “are gathering a list of candidates, with the goal on agreeing upon a candidate by the end of September 2019. We will file a notice with the Court once the Parties reach agreement, or in the event we reach an impasse. Dr. Moseley provided some suggested candidates, including Dr. Antosh, whom we are considering.”

In an email Sept. 30, Antosh has said that he is “aware my name has been floated. If appointed, I would be willing to serve.”

Judge McConnell has extended the search deadline from the end of September to Nov. 25. His order, dated Sept. 27, requires the state and the DOJ to give McConnell a progress report on the search every two weeks.

Antosh ***Photo By Anne Peters

Antosh ***Photo By Anne Peters

Antosh, as the long-time director of the Sherlock Center on Disabilities at Rhode Island College, has played an integral role in numerous education and training efforts related to the integration of people with disabilities in their communities, the principle at the heart of the consent decree and the Integration Mandate of the Americans With Disabilities Act.

He also has overseen a critical quarterly survey assessing the quality of life of Rhode Islanders with developmental disabilities that has played an important role in helping the state provide data to the consent decree monitor.

Antosh, a lifetime advocate for people with developmental disabilities, was a plaintiff in the lawsuit that succeeded in shutting down the Ladd School in 1994, making Rhode Island the first to de-institutionalize the population.



DOJ Urges End To City’s Obligations In Landmark Providence "Sheltered Workshop" Case

By Gina Macris

The U.S. District Court will hear a request by the City of Providence and the U.S. Department of Justice for early termination of a civil rights agreement affecting intellectually challenged students at Mount Pleasant High School who were once trained only to perform repetitive tasks in a sheltered workshop.

The hearing was scheduled for Sept. 26 after the DOJ formally signaled its support for the city’s request, saying the city and its school department have transformed services for students in keeping with the Integration Mandate of the Americans With Disabilities Act.

“Students are now integrated with their classmates and receive services to prepare them for integrated work in careers that match their interests and abilities,” said lawyers for the DOJ.

In accordance with the agreement, “the City will ensure that these changes are lasting,” the DOJ said in written arguments urging Judge John J. McConnell, Jr. to dismiss the case against the city.

The DOJ praised the city’s “rapid implementation” and “consistent adherence” to the provisions of the agreement, saying it has resulted in “substantial compliance” a year ahead of schedule. The government’s conclusion concurs with a recent report filed by an independent court monitor.

“This is a victory for all involved,” the DOJ said.

The DOJ lawyers pointed out that “this agreement was the first in the nation to address the rights of individuals with disabilities to receive integrated employment services instead of segregated workshop services.”

The DOJ did not address the city’s compliance in the context of the impending state takeover of the city’s school system. The request for early dismissal was made last winter - months before the appointment of a new state Commissioner of Education, who received a devastating outside evaluation of the school system from the Johns Hopkins Institute for Educational Policy.

The agreement, signed in 2013, is due to expire on July 1, 2020. It served as a prototype for a subsequent statewide consent decree signed in 2014 which obliges the state to provide transition services to students with developmental disabilities in all high schools across Rhode Island and to transform all work and non-work adult services to comply with the ADA’s Integration mandate, which has been affirmed by the Olmstead decision of the U.S. Supreme Court.

An early dismissal of the city’s obligations under the 2013 Interim Settlement Agreement (ISA) would mean that the city would no longer have to prepare for frequent calls and periodic visits from the monitor and the DOJ lawyers, or to file detailed and time-consuming quarterly reports documenting its compliance efforts. But court retains jurisdiction for a year after the expiration date, according to the DOJ.

Granting the city’s request would not affect the state’s continuing obligations for former Birch students who were sent to the now-defunct sheltered workshop, Training Through Placement, which used the Birch Academy as a pipeline for workers. Nor would it curtail the state’s responsibilities for other adults with developmental disabilities throughout Rhode Island who must have access to integrated work and non-work services under provisions of the separate 2014 consent decree.

The two agreements have fostered an “Employment First” policy, which assumes that all adults with developmental disabilities can work at regular jobs in the community. The policy encompasses self-employment and customized employment, which involves cooperation by employers motivated to re-order established job descriptions to get important tasks done by reliable employees. (Exceptions to the “Employment First” policy are allowed on a case by case basis.)

The DOJ said an independent court monitor, Charles Moseley, has found in a recent report that the city has met or exceeded standards for 45 compliance measures in four categories:

• Career development and transition planning

• Trial work experiences

• Training, outreach, and education about integrated employment for school staff, students and families

• Interagency coordination

School personnel have prepared students to obtain competitive employment as adults through “person-centered” planning, which begins by highlighting each student’s individuality; as well as detailed career development plans and vocational assessments, the DOJ wrote.

Moreover, the city’s efforts have extended to former Birch students who left school as early as 2010. The city has undertaken “significant efforts” to locate them and provide vocational assessments, supported employment services and other assistance to help them find integrated employment. The city has reached nearly 50 former students.

“As noted by the court monitor, this ‘look back’ strategy to correct past discrimination showcased the city’s commitment to the objectives of the ISA,” according to the DOJ.

The government lawyers also agreed that the city provides high quality trial work experiences that are individualized and integrated in the community. The agreement requires that every student have two such internships, each one lasting 60 days, before leaving school.

The city “repeatedly went the extra mile to ensure students’ individualized needs were met” and has satisfied the monitor’s concerns about the few cases in which students lacked a second internship, the DOJ said.

Teachers and other professionals working with students participate in frequent training and have “consistently demonstrated their ability to implement the requirements and goals of the ISA, breathing life into the city’s Employment First Policy,” the DOJ said.

The lawyers cited improvements in the school department’s cooperation with state agencies, including regular consultation with a rehabilitation counselor from the Office of Rehabilitation Services and monthly meetings between the city’s special education director and state officials to review the progress of former students who are receiving adult services.

The city’s swift progress in implementing the agreement and “years of sustained reform” have resulted in a myriad of changes in policy, operations, and attitudes that will be “difficult to dismantle,” the DOJ wrote.

And the success of the ISA, “including considerable outreach and education to students, families, and the community, has spread awareness and the expectation that students with IDD are capable of working in integrated settings with services,” the lawyers wrote.

The DOJ noted that Birch students will continue to benefit from the state’s obligations under the 2014 statewide consent decree, which requires students with developmental disabilities in all Rhode Island high schools to receive transition services similar to those developed through the ISA. The statewide decree is to expire in 2024.

The Sept. 26 hearing before Judge McConnell is scheduled for 10 a.m.

Read the next article (below) for monitor Charles Moseley’s assessment of the city’s compliance efforts under the Interim Settlement Agreement.

In addition, click here for an article on a public discussion of the pros and cons of early termination of the city’s obligations.

Feds Consider Early Termination Request For DD Oversight At Mount Pleasant High School

By Gina Macris

A Providence School Department request that the federal government end its oversight of a special education program at Mount Pleasant High School is encountering some resistance and concern because of a more immediate development: The state is taking control of the entire “broken” school district.

Months ago, the city of Providence sought early termination of a landmark federal Interim Settlement Agreement, reached in 2013, in which the school department promised to make major changes in the way special education students at Mount Pleasant High School were being shuttled into a sheltered workshop program in North Providence.

The school system agreed to prepare students in the Birch Vocational Center at Mount Pleasant High School to take advantage of supported employment in the community and to participate in integrated non-work activities in compliance with the integration mandate of the Americans With Disabilities Act.

The U.S. Department of Justice and a federal court monitor are carefully considering the request and have solicited the opinions of various segments of the developmental disabilities community on the pros and cons of terminating the agreement now, a year before it is set to expire.

On July 23, the monitor, Charles Moseley, and Victoria Thomas, a lawyer for the DOJ, discussed possible early termination via conference call with members of the Employment First Task Force (EFTF), an advisory group on matters concerning the 2013 agreement and a broader, statewide consent decree signed in 2014.

On the same day, the Council on Elementary and Secondary Education voted, as anticipated, to empower the state Commissioner of Education to intervene in the Providence School District, taking temporary control, if necessary, of its budget, personnel, and governance.

Thomas said she was concerned about a recent report on Providence schools from Johns Hopkins University’s Institute on Educational Policy which found a deeply dysfunctional system where most students are not learning, principals are struggling to lead, teachers and students don’t feel safe, and some buildings are crumbling around them.

Mount Pleasant High School was one of 12 schools visited by the Johns Hopkins researchers.

At the same time, Thomas said, she personally has been “very impressed with the work Providence has done” with the Mount Pleasant special education students protected by the 2013 Interim Settlement Agreement. Over the last several years, Thomas has participated in many site visits at Mount Pleasant High, as has Moseley, who concurred with Thomas’ assessment. Having done similar visits in other states, Thomas said, she has been “blown away” by the quality of work done to put the needs and wants of students in Providence at the center of their individualized education plans.

“That doesn’t mean that everything is perfect,” Thomas said.

The Interim Settlement Agreement assumes that Mount Pleasant High School students will make a successful transition from school to adult services provided by the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals. And Thomas said some of the comments that have been received from stakeholders in developmental disability services indicate that the DOJ and the monitor “really need to look into adult services.”

The Providence school department’s involvement in the Interim Settlement Agreement is set to expire in July, 2020, as long as the city is in “substantial compliance” a year ahead of time and the changes made during compliance are found to be lasting.

If the DOJ and the monitor agree to “early termination and we’re wrong,” Thomas said, the oversight of the state’s efforts to integrate adults with developmental disabilities in their communities will continue as part of the overlapping statewide consent decree signed in 2014.

“We’re not leaving anyone behind,” she said. Moseley added that the monitor and the DOJ will continue to have access to data about the progress of the same students as they merge into the adult population.

State Sen. Louis DiPalma, D-Middletown, who attended the task force meeting, expressed concern that even if implementation of the Interim Settlement Agreement has been going well at Mount Pleasant High School, the state of the school system around the program is in question.

Anne Peters, a parent who serves on the task force, asked whether continuing to monitor Mt. Pleasant High might be needed to protect the resources that have been brought to bear to change the prospects for special education students.

“I think we’re expecting quite the chaotic year” in Providence, she said.

“An excellent question,” Moseley said.

Several days before the meeting, Task Force leaders collected comments on early termination that made three main points:

  • There seems to have been significant progress at Mt. Pleasant, with special education students having meaningful work trials

  • Students still leave school unable to get the appropriate employment supports, like those from other communities, because providers are not accepting new referrals.

  • ·The Johns Hopkins report will put Providence under pressure to make many reforms and it would be ill-advised to take the spotlight off students with developmental disabilities for fear they would once again get left behind.

Neither Thomas nor Moseley said when the decision would be made on early termination. Moseley has indicated he plans to complete a report on whether Providence is in substantial compliance with the Interim Settlement Agreement before he steps down as monitor on Sept. 30.

Moseley To Step Down As Court Monitor of RI Olmstead Consent Decree, Citing Health Concerns

Charles Moseley

Charles Moseley

By Gina Macris

Charles Moseley, the independent federal court monitor overseeing implementation of two federal civil rights decrees affecting Rhode Islanders with developmental disabilities, will step down at the end of September because of what he termed “emerging health issues.”

Brian Gosselin

Brian Gosselin

In a related matter, Brian Gosselin, chief strategy officer at the Executive Office of Health and Human Services (EOHHS), has been named the state’s consent decree coordinator, a post he has filled on an interim basis twice in the last few years. Rhode Island has had five consent decree coordinators, including Gosselin, in five years.

The personnel changes were announced July 18 by EOHHS. Before Moseley resigns on Sept. 30, he said in his letter, he intends to complete his assessment of whether the city of Providence is in substantial compliance with the first of the two federal agreements, reached in 2013.

In it, the city stopped using the Birch Academy at Mount Pleasant High School as a feeder program for a now-closed sheltered workshop called Training Through Placement and instead pledged to help high school students with intellectual or developmental challenges make the transition to competitive employment in the community.

The 2013 “Interim Settlement Agreement” (ISA) is set to expire in 2020, but lawyers for the U.S. Department of Justice (DOJ) have said the city must be in “substantial compliance” a year ahead of time. Moseley’s resignation letter indicated he is working on that assessment. The city, meanwhile, has asked for early release from the ISA.

Moseley has served as the federal court monitor since late 2014, a few months after the state and the DOJ settled a broader civil rights complaint saying that Rhode Island’s system for developmentally disabled adults relied too heavily on sheltered workshops and segregated day centers. Former Gov. Lincoln Chafee signed a consent decree with the federal government in which he pledged that the state’s system would be overhauled by 2024, making certain that those who wished to participate in work, learning and recreation in the larger community would be helped to do so.

The 2014 settlement marked the first Olmstead consent decree in the country targeting segregated day services for adults with developmental disabilities. The Olmstead decision of the U.S Supreme Court reinforced the Integration Mandate of the Americans With disabilities Act. Previously, the DOJ had enforced the ruling in connection with segregated housing.

Moseley is a former director of developmental disabilities in Vermont and a former associate executive director of the National Association of State Directors of Developmental Disabilities Services.

A new court monitor would need the approval of the state, the DOJ and Judge John J. McConnell, Jr. of U.S. District Court, who is overseeing the case. McConnell has made it clear that he relies on Moseley’s recommendations in steering the implementation of the consent decree.

In his letter, Moseley said the decision to step away after five years “is a very difficult one to make.”

He said he has enjoyed working with all involved and will miss the “in-depth discussions and negotiations that we have had in our ongoing efforts to achieve the goals and outcomes identified by the two agreements.”

Moseley, who lives in Vermont, has made site visits to Rhode Island several times a year, usually keeping out of the public eye, and has incorporated his observations, as well as data supplied by the state and the city, into quarterly reports to McConnell. He also has attended periodic status conferences on the case before McConnell.

“Implementing comprehensive systems change within the boundaries of the complicated developmental disabilities system is challenging,“ Moseley said. He praised a variety of state and city officials for “actively addressing the changes that must be made.” He also recognized the DOJ lawyers for their “constructive approach and unwavering focus” on individuals with intellectual and developmental disabilities.

RI DD Rate Reviewers Asked To Fix Payment System That Still Promotes Segregated Care

By Gina Macris

This article was updated June 17 with a response from the Rhode Island Department of Behavioral Healthcare, Developmental Disabilities and Hospitals.

The Rhode Island state agency which funds services for adults with developmental disabilities has acknowledged for the first time that its underlying reimbursement system for private providers is structurally deficient for complying with the Americans With Disabilities Act as required by a 2014 federal civil rights decree.

While the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) has pursued services promoting greater independence for adults with developmental disabilities, “the underlying reimbursement system has lagged,” according to a statement of the scope of work outlined for a consortium tasked with reviewing reimbursement rates.

The rate structure “is grounded in past practices and cost bases associated with the provision of services in the sheltered workshop setting,” BHDDH officials wrote.

“In order to adequately meet consumers’ needs, providers have been paid supplemental funds to address the deficiency in the payment rates,” BHDDH explained in the contract.

BHDDH has a contract with the New England States Consortium Systems Organization (NESCSO) to update a rate structure that has not been reviewed for eight years and to suggest alternates to the current payment methods.

In describing the work ahead for NESCSO, BHDDH says it is:

“seeking to further promote the development of a service system and associated reimbursement arrangements that maximize the opportunity for persons with DD to participate to the fullest possible in community-based activities.”

In 2014 the U.S. Department of Justice found that the reimbursement system incentivized segregated care in sheltered workshops and day centers in violation of the Integration Mandate of the ADA, reinforced by the U.S. Supreme Court in the Olmstead decision.

The Obama administration began vigorously enforcing the Olmstead decision in 2009, but the consent decree in Rhode Island was the first settlement that addressed segregation in daytime services rather than housing.

The consent decree provides a decade-long period of federal oversight of the state’s efforts to change the system. Enforcement of the consent decree entered its sixth year April 9. It will take at least another year for changes in rates and payment methods to go into effect, with the approval of the General Assembly. Enforcement of the decree is set to expire in 2024, but the state would have to show substantial compliance before federal oversight ends.

While some improvements in services have been made, the contract with NESCSO indicates that BHDDH officials believe the reimbursement system has held back compliance efforts.

Staffing Ratios Hinder Needed Flexibility

The underlying problem, said the BHDDH director in an interview, is a rule that requires a ratio of 60 percent funding for community-based activities and 40 percent funding for center-based daytime care in each client’s individual authorization.

The contract language alludes to this situation in describing staffing ratios. It says two areas of “particular focus” are daytime rates paid for employment-related and non-work services. In sheltered settings, for example, there might be one worker for every ten clients. But in the community the number of clients for each worker would have to be much smaller.

Rebecca Boss, the BHDDH director, said the department seeks a “predictable rate structure not driven by very precise ratios” but rather by the needs and preferences of individual clients.

The supplemental payments intended to mitigate the deficiencies in the underlying system “are an increasing portion of overall payments, reflecting the inadequacy of the current rates,” the contract language explained.

According to department officials, that language was meant to refer to the historical trend, in which supplemental payments had increased to as much as $7.8 million in a three-month period.

Boss froze new approvals at the end of 2017, except for emergency health and safety considerations and a couple other narrowly defined exceptions, to try to curb a multi-million dollar deficit at a time when Governor Gina Raimondo seemed inclined to cut developmental disability services significantly.

According to records BHDDH turns in to the General Assembly every month, the supplemental payments from January through March of this year have declined to $3.6 million, about half the total for the same period in 2018.

Historically, supplemental payments have been awarded only when consumers, families, or providers have made successful appeals of individual authorizations. The appeals, which often have required considerable time and energy, must be made annually, or the authorization reverts to the original amount. The appeals process is but one facet of what many families and providers describe as an unstable system.

Kerri Zanchi, director of the Division of Developmental Disabilities, said supplemental payments are still a big part of reimbursements to private providers, and BHDDH wants NESCSO and its consultants to scrutinize them as part of the review process.

Study Commission To Hear from NESCSO

The rate review coincides with the work of a special legislative commission studying the current reimbursement system, called Project Sustainability.

On June 18, the commission will meet to hear presentations about employment and transportation issues from Scott Jensen, director of the Department of Labor and Training; and from Scott Avedesian, CEO of the Rhode Island Public Transit Authority.

On June 25, the executive director of NESCSO, Elena Nicolella, is scheduled to appear before the commission to give an update on the rate review now being conducted by four consultants under NESCSO’s supervision.

In the meantime, some commission members have given BHDDH their own statements on how they think consultants should approach the work and their ideas for a new system of services that allow consumers and their families to shape the way state funds are used.

A spokeswoman for providers has urged NESCSO and its consultants to gain a thorough understanding of what it costs for a private agency to provide services under the terms of recently-revised regulations for provider operations and quality certification standards.

These bureaucratic steps are part of the state’s efforts to comply with the consent decree and the federal Medicaid Home And Community Based Final Rule (HCBS). Like the consent decree, HCBS embraces the integration mandate of the ADA, but it is a nationwide rule applying to all community-based services funded by Medicaid.

Paradox In Unspent Funds For Employment

Tina Spears, executive director of the Community Provider Network of Rhode Island, warned that simply looking at the way providers utilize the current reimbursement model, which is based on segregated care, will not give the complete picture of the needs of the system.

She did not mention specifics, but a case in point is the performance-based supported employment program, which was funded by a $6.8 million allocation made by the General Assembly in the fiscal year that began July 1, 2016. That allocation still has not been completely spent.

Excluding a start-up period from January through June of 2017, the program spent $2.5 million the first year, from July 1, 2017 through June 30, 2018. It’s expected to spend $4 million in the fiscal year ending June 30, according to a BHDDH spokesman.

Providers initially complained that they could not meet their costs with the series of one-time incentives offered by the program, which was built on same reimbursement system designed for center-based care.

Incentives and enhancements were made more generous during the second year, and negotiations are underway for a third year of the program.

In the meantime, Rhode Island’s last sheltered workshop closed last year and BHDDH says community-based, competitive employment has increased to about 29 percent of adults with developmental disabilities.

A study released by two nationwide associations of providers in January said Rhode Island’s rate of competitive employment was about 19 percent, but that figure dated from 2015. The “Case for Inclusion” ranked Rhode Island 32nd in the nation on its integration efforts. It was compiled by ANCOR - the American Network of Community Options and Resources, and UCP – United Cerebral Palsy.

Consumers Want More Control Over Money Assigned To Them

Kevin Nerney, executive director of the Rhode Island Developmental Disabilities Council, and Kelly Donovan, who receives state-funded supports, each called for a system that allows greater consumer control of state funding and greater flexibility in the way it is used.

The state should “ensure that funding is available across all imaginable living arrangements,” particularly in situations where a consumer owns or rents a property and a caregiver or family would like to move in. The caregiver or consumer should be allowed a stipend, as is permitted in many other states, to make this type of arrangement viable, Nerney said.

The state should also ensure that adults with developmental disabilities have the support of familiar staff while they are hospitalized to avoid the trauma of being in an unfamiliar environment where they can neither make themselves understood nor understand what is being said to them, Nerney said.

In addition, the state should adopt a way to assess the support a person receives from family or friends in deciding funding levels. While most of those receiving services from the Division of Developmental Disabilities live in the family home, that home may include a large healthy family, a single aging parent, or a grandparent with Alzheimer’s and a sibling who also has significant needs for support, Nerney said.

And he called for more funding for those hired by self-directed consumers and their families to write support plans necessary to qualify for state funding. The expectations for the plan writers have multiplied over the last 20 years but the fees remains the same at $500 for the initial plan and $350 for an annual renewal, Nerney said. There should be an allowance for self-directed families who need ongoing coordination of services, he said.

Kelly Donovan, who herself receives services from BHDDH gave a concrete example of what greater control and flexibility might look like.

She said people should be able to enjoy an outing without:

A: going home early because a staffer’s shift ends

B: taking everyone in your group home with you, even if one or more of them really didn’t want to come.

“People should be able to have their designated time to themselves and opportunities to be involved in community activities,” she said.

The public may submit comments or questions about the rate review process by email at BHDDH.AskDD@bhddh.ri.gov. Please copy and paste the email address into your email program, or get a link by visiting http://www.bhddh.ri.gov/developmentaldisabilities/community_forums_event.php

In response to this article, Randal Edgar, a spokesman for BHDDH, released the following statement on June 17:

The article published on June 12 on the Olmstead Updates blog presents a misleading picture of Rhode Island’s system of care for adults with developmental disabilities.

The headline claims this system “promotes segregated care.”

This assertion is false.

The article attempts to back up this assertion up by referring to language in a state contract with a consultant that is reviewing the rates paid to DD providers. But in referencing the contract language, the article misreads the intent of that language.

The contract language speaks from a historical perspective. It states that while the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals has pursued the development of “a services system that supports greater independence” for the DD population, “the underlying reimbursement system has lagged.” It goes on to say that the “basis for the development of prevailing rates is grounded in past practices and cost bases associated with the provision of services in the sheltered workshop setting.”

Acknowledging that the existing rates are grounded in past practices and need to be updated is not the same as saying the system as it operates today promotes segregated care, and in saying it does, the article ignores and/or minimizes many steps the department has taken to improve the care provided to adults with developmental disabilities. It should be noted that the reporter met with BHDDH officials for more than an hour but did not press this assertion and obtain their view of the contract language.

The article is wrong again when it states that department froze new approvals for supplemental payments in 2017 to help offset a budget deficit. The department reduced those approvals, applying more stringent standards, not because of a possible budget deficit but because this made sense from a policy standpoint.

Finally, the article gives voice to people outside the department, asking them to describe where the DD care system should go, without giving BHDDH officials a chance to share their vision. In the process, it conveys a false impression that BHDDH officials are not passionate about moving this system forward.

We are disappointed that the article did not present a more complete and accurate picture.

Separately, the public may submit comments or questions about the rate review process by email at BHDDH.AskDD@bhddh.ri.gov. Please copy and paste the email address into your email program, or get a link by visiting http://www.bhddh.ri.gov/developmentaldisabilities/community_forums_event.php

RI Parents: System Of Care Fails To Address Supervision of Adults With DD In Hospital Setting

Jane Sroka * all photos by anne peters

Jane Sroka * all photos by anne peters

By Gina Macris

Access. Quality. Safety.

Those are the three words chosen by officials of the Rhode Island Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) to sum up their overarching goals in serving adults facing intellectual and developmental challenges.

But at a public forum in Warwick Feb. 5, Jane Sroka, the mother of a man with intensive special needs, said the reality falls far short of those three goals when adults with special communications and behavioral needs are hospitalized.

The Medicaid dollars to which Sroka’s son is entitled through Home and Community-Based Services funded through BHDDH stop at the hospital’s door.

“My son needs 24/7 eyes-on supervision at all times. It’s huge. It’s life and death. That’s what it is,” she said.

In the hospital, Sroka said, “I was with him 24/7. He was awake 24/7. I was awake, 24/7. That was tough. It’s grueling on everybody.”

You’re talking about putting safety first? This is safety first,” Sroka said.

Not providing that round-the-clock supervision, in her son’s case, would have been dangerous, she said.

It’s not that the nurses don’t care, she said, but “if I wasn’t there, they wouldn’t have a clue about what to do or how to do it or when to do it, or whatever. It’s dangerous. And it has to change,” she said. She said she knows she is not alone.

Gail Peet had a similar story. She said her daughter, 47, who is non-verbal, became extremely agitated when a feeding tube was inserted.

After her daughter was transferred to a nursing home, Peet said, she asked the staff to put a binding around the feeding tube to prevent her daughter from ripping it out.

The nursing home refused, on the grounds that the binding would constitute a “restraint,” Peet explained after the forum. The next morning, the staff discovered that Peet’s daughter had indeed ripped out the tube, which had to be re-inserted, causing her the additional pain of a second procedure.

In neither Peet’s nor Sroka’s case did there appear to be a plan for in-hospital or discharge care that addressed complications that could arise from individuals’ particular challenges as persons with developmental disabilities.

Rebecca Beaton

Rebecca Beaton

And Rebecca Beaton, who uses a wheelchair and must make a great effort to shape each word, said she, too, needs 24-hour care if she goes to the hospital because she has a speech problem and not everyone understands her. A support person seated next to her at the forum repeated her words for clarity.

John Susa, former chairman of the Rhode Island Developmental Disabilities Council and the father of a man with extensive needs, said there used to be a pool of state funds — outside the federal-state Medicaid structure — that was once used only in emergencies involving adults with developmental disabilities. He suggested that officials re-visit that idea.

Kerri Zanchi, Director of the Division of Developmental Disabilities (DDD),, stood at the podium of a meeting room in the Warwick Public Library, taking notes.

Kerri Zanchi

Kerri Zanchi

Medicaid separates Home and Community Based Services (HCBS) from hospital services to avoid duplication, Zanchi explained.

“But I hear you,” she told Sroka and Peet, that the situations they described were not about duplicate services.

Zanchi raised the possibility that an upcoming initiative, the creation of a “Health Home,” might open an opportunity to provide the kinds of supports that Sroka and Peet needed in the hospital and nursing home. A Health Home is a Medicaid-spawned concept for the management of services, not a bricks and mortar facility.

“It is so important for the individuals we love and support to have that consistency and continuity of care,” she said.

Earlier in the forum, Zanchi had explained the Health Home as an entity that would manage a program of individualized services around the unique needs and preferences of a particular person served by DDD.

FROM OLMSTEAD TO HEALTH HOMES


Medicaid created the Health Home option to separate the design and management of services from the funding and delivery of services. The goal is to avoid any conflict of interest that might compromise the quality of care.

The states must provide so-called “conflict-free case management” by 2022 to comply with the Medicaid Home and Community Based Services Final Rule, issued in 2014 to align Medicaid with the integration mandate of the Americans With Disabilities Act.

According to the 1999 Olmstead decision of the U.S. Supreme Court, the integration mandate says individuals with disabilities must have access to the supports they need to live regular lives in the least restrictive environment that is therapeutically appropriate – and that environment is presumed to be the community.

In line with Olmstead, as well as a 2014 consent decree in which Rhode Island has agreed to desegregate its daytime services for adults with developmental disabilities, state officials and the developmental disability community have embraced the idea of “person-centered planning,” which puts the needs and preferences of individuals at the core of any service plan.

But at the forum, Mary Beth Cournoyer, the mother of an adult son with developmental disabilities and a member of the Employment First Task Force, suggested “whole life” planning as a more encompassing term.

“How do we build lives? It’s 24 hours a day, seven days a week,” she said. The Employment First Task Force to which she belongs was created by the consent decree to serve as a bridge between the community and state government.

Zanchi said state officials will meet with their community partners, including families and providers, to ask them to help draft the design for a Health Home for adults with developmental disabilities before the application is submitted to the federal Medicaid program.

She said DDD hopes to have a Health Home up and running in about 12 months.

NEW WORKPLACE LAW AFFECTING SOME DD SERVICES

The forum also brought to light apparently unintended consequences of the Healthy and Safe Families and Workplaces Act, which went into effect last July 1, guaranteeing all workers get time off to go to doctors’ appointments and attend to other important personal and family needs. Companies with 17 or more employees are required to give paid leave.

Sue Babin of the Rhode Island Developmental Disabilities Council said that those who direct services for themselves or a loved one are receiving conflicting advice from fiscal intermediaries about whether the law applies to support staff for adults with developmental disabilities.

And some individuals who are advised the law does apply and are granting time off to their support staff are having problems finding substitute workers, Babin said.

Zanchi suggested a separate meeting with families that organize and direct their own services to discuss the impact of the new workplace law and any other inconsistent advisories they may be receiving from fiscal intermediaries, who control the individualized budgets the state authorizes to be spent on services for particular individuals.

RATE REVIEW GEARING UP

In an overview of changes at DDD, Zanchi announced that the division is about to embark on a review of its fee-for-service rate model for reimbursing private agencies that provide most of the developmental disability supports in state.

To that end, BHDDH has selected an outside consultant for the remainder of the current fiscal year and the new budget cycle beginning July 1.

Zanchi declined to name the contractor until a purchase order for services has been signed by the state purchasing office. She did say, however, that the consultant was not Burns & Associates, the Arizona-based company that helped a previous administration devise Project Sustainability That is the name for the existing fee-for-service model that doles out payments for daytime services in 15-minute increments that must be documented by each worker for each client served.

Zanchi said $500,000 for the consultant was budgeted in the current fiscal year, and an equal amount is in the governor’s proposal for the next budget.

To expedite the rate review, the contractor was selected as a “sole source” provider, without the months-long process or issuing a request for proposals and reviewing bids, Zanchi said.

NEW YOUTH AND TRANSITION ADMINISTRATOR

Zanchi announced that Susan Hayward, a veteran social casework supervisor, has been named to the new position of Youth and Transition Administrator, to coordinate a smooth shift for high school special education students moving into adult services.

Employment opportunities and other transitional servicesfor teenagers and young adults are a prime concern of the independent court monitor overseeing implementation of the 2014 consent decree, as well as an earlier interim settlement agreement affecting only youth and adults in Providence.

The 2013 interim settlement agreement addressed violations of the integration mandate of the ADA that involved a special education program at the Birch Academy of Mount Pleasant High School being used as a feeder program for a former sheltered workshop in North Providence called Training Through Placement. The agreement is set to expire July 1, 2020, at the discretion of the U.S. District Court.

BHDDH officials presented a PowerPoint of information covered at the public forum. To view it, click here.

The advocacy group RI FORCE (Rhode Island Families Organized for Reform, Change, and Empowerment) recorded the public forum and has posted the video, in three parts, on its Facebook page. To connect to the video, click here.

RI Senate Finance, BHDDH To Seek More Funding To Protect Services And Rights Of Adults with DD

By Gina Macris

Governor Gina Raimondo’s proposed $18.4 million cut to developmental disability services for the next fiscal year would not allow Rhode Island to continue its compliance efforts in connection with a 2014 federal consent decree, Rebecca Boss acknowledged for the first time during a budget hearing before the Senate Finance Committee on May 3.  

Boss - RI CApitol tv

Boss - RI CApitol tv

Boss is the highest ranking official in the Raimondo administration responsible for adults with developmental disabilities in her position as the director of the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH).  

Her admission came in response to the finance committee chairman, Sen. William J. Conley, Jr., who laid out a detailed and persistent line of questioning that revealed an authoritative grasp of the issues of the the consent decree and established him as a leading advocate for expanding the developmental disabilities budget.  

Boss said in initial remarks that based on an “updated data analysis of monthly caseloads and more positive revenue trends, we will be advocating for increased funding for BHDDH so Rhode Islanders’ needs are met.”

Conley - RI CAPITOL TV 

Conley - RI CAPITOL TV 

But Conley asked her to revisit a specific question about funding that had first been posed to her by U.S. District Court Judge John J. McConnell, Jr. during a hearing April 10. McConnell asked whether the proposed $18.4 million cut in reimbursements to private providers effective July 1 would affect the state’s ability to move forward with compliance efforts related to the consent decree.

At the time, Boss said BHDDH did not have enough data to give an answer.

Conley said the consent decree “does nothing more, quite frankly, than require the same standards that the U.S. Supreme Court established in 1999.”

The so-called Olmstead decision clarified the integration mandate of the Americans With Disabilities Act, spelling out the rights of all individuals with disabilities to choose services that are part of their communities.    

Nearly 20 years after the Olmstead decision, Rhode Island is “still struggling to meet a constitutional standard of care,” Conley said.

“Four years after the consent decree was entered and after repeated court monitor reports, we still cannot answer the question as to whether or not we are providing sufficient resources, really, to provide justice and dignity to the people with intellectual and developmental disabilities in the state of Rhode Island.”

“While I understand you have to represent the voice of the administration, and everybody expects you to be a loyal soldier and team player, the budget that you are giving us doesn’t do that,” Conley said, addressing Boss.

Otherwise, Boss would have been able to clearly answer the judge that the loss of $18 million would not affect progress on the consent decree and would have been able to spell out how its goals would be achieved with the remaining funds, Conley said.

When Conley asked what the Senate Finance Committee could do to help BHDDH, Boss and the Director of Developmental Disabilities, Kerri Zanchi, both said members could advocate for more flexibility for the department to assign resources.

Boss said she agreed that the department needs more resources but wasn’t sure that the prescriptive nature of the consent decree was the best approach.

But Conley replied said that when the state isn’t meeting the standards, or doesn’t have the data to show its progress – a problem since 2014 – “the default position is prescriptive standards, because they need some kind of measuring stick.”

One measure is whether the “proposed budget would provide the level of services that are constitutionally mandated,” Conley said.

“What’s your answer today?” he asked, bringing the discussion full circle back to the judge’s question.  

Boss said, “With the revised analytics done, we could say today that the budget proposed would not continue the service delivery” in the current fiscal year.  The consent decree requires an increase in commitment during each year of implementation. equired by the consent decree.

While Boss did not offer a figure, Sen. Louis D. DiPalma, D-Middletown, the first vice-chairman of the committee, said developmental disabilities would need about $275 million to $280 million in federal and state funding during the next fiscal year, based on the original budget request the department made to the Governor’s office last fall.

DiPalma presented a chart showing that actual funding for developmental disabilities has lagged behind inflation since July 1, 2011, which marked the introduction of “Project Sustainability,” the current fee-for service reimbursement system that has come under increasing criticism for imposing restrictions on providers – and the state bureaucracy – in implementing the consent decree.

For example, the chart shows that the $239.8 million allocated for developmental disabilities effective July 1, 2010 would be the equivalent of $274.5 million allocated effective July 1, 2018, the start of the next fiscal year, with an adjustment for inflation according to the consumer price index.

Raimondo’s proposal, as it now stands, would allocate only $248.1 million effective July 1, counting only the federal-state Medicaid funding. (Other miscellaneous funds would add slightly more than $2 million to the bottom line.)

The Senate on May 1 gave final approval to a resolution creating a special commission to study the reimbursement system under Project Sustainability, including the use of a standardized assessment tool keyed to a funding formula that has never been disclosed. The commission has until March 1, 2019 to issue its report.

Sen. Walter S. Felag, Jr., D-Warren, Bristol and Tiverton, said he favors fully funding developmental disabilities.

He said it seems that in the last eight to ten years, there has been “tremendous pressure” to decrease these expenditures,” with particular challenges on residential costs from 2013 to 2017 as BHDDH has tried to move people out of group homes to less expensive shared living arrangements.  He questioned whether it has been all worthwhile.

Boss said there have been investments in developmental disabilities in that time, and Conley remarked that Boss and her staff are doing “tremendous work” with the resources they do have.

Beth Upham put a parent’s perspective on services. Her daughter, Stacy, a resident of a group home with an active calendar, “has a life we never could have given her,” she said.

She said she has met with Governor Raimondo, who has “promised she would support this community.”

But if the governor’s existing budget proposal is enacted, Upham said, “every person in the system will suffer. They will be sicker. There will be more hospitalizations. My daughter, my baby girl, will suffer,” Upham said.

“We have been fighting this system ever since she turned 21,” Upham said.

She asked, “why, for the last 15 years, has this community been targeted for cuts?”

'Day Of Action' Planned At RI State House To Raise Disability Awareness - And Alarms About Budget

By Gina Macris

Developmental Disabilities Awareness Month, celebrated across the nation, will come to the Rhode Island State House in a “Day of Action” Thursday, March 29.

Adults who face intellectual challenges in daily living plan to celebrate their accomplishments. But they and their supporters also want to raise an alarm about the damage they say proposed budget cuts will cause to the services they need to live full lives.

The “Day of Action” is aimed at lobbying legislators over what advocates say is a looming crisis. Late in the afternoon, after the House adjourns, a subcommittee of the House Finance Committee is scheduled to hear Governor Gina Raimondo’s budget proposal.

The budget would eliminate $18.4 million in current costs from the private service system that supports most adults with developmental disabilities in Rhode Island, says Donna Martin, executive director of the Community Provider Network of Rhode Island (CPNRI), sponsor of the “Day of Action. “

On Thursday evening, Advocates in Action will host a meeting in Warwick that will feature adults with developmental disabilities encouraging their peers to speak up for their right to individualized services that is embedded in the Americans With Disabilities Act (ADA).  (Read related article here.) 

The individualized  approach is inherently costlier than the congregate care Rhode Island has depended on in the past in sheltered workshops and day centers. 

But the right to individual choice is mandated by the state’s 2014 Olmstead consent decree with the U.S. Department of Justice. And the judge in the case, John J. McConnell, Jr. of U.S. District Court, has signaled from the bench that he will be watching budget deliberations.

Among service providers, some officials say privately that their agencies are teetering on the brink of insolvency as a result of several years of underfunding in which the state has failed to cover their costs and they’ve exhausted any reserves they might have had.

The budget, if enacted, would be “untenable,” said the CEO of one service agency, who asked not to be identified publicly.

Family members say the issue is not just about the service agencies.

David and Marcia Graves, parents of a woman with cerebral palsy, said in a statement that the spending cuts “will put the emotional and physical well-being of our daughter and others in jeopardy.”

A drastically reduced budget would make the difficult job of recruiting and retaining qualified direct care workers impossible, the Graveses said in a statement released by the CPNRI.

Raimondo’s calculations suggest that the governor’s office and the developmental disabilities agency, BHDDH, are not reading from the same page of figures.

Martin, the executive director of CPNRI, put it another way. She said that Raimondo’s budget, like the proposals of governors before her, does not address a structural deficit in developmental disabilities, instead continuing a cycle of chronic underfunding and deficit spending.

Here are the numbers:   

The developmental disabilities budget the General Assembly enacted last summer for the current fiscal year allows $256.9 million in spending.

 Raimondo would raise current spending to $272.2 million – an increase of $15.3 million to cover a cost overrun. 

For the fiscal year beginning July 1, Raimondo would drop the bottom line to $250.8 million. The difference would be $21.4 million, including $18.4 million that would come from private providers and $3 million that would come from state-operated group homes.

Viewed another way, Raimondo’s bottom line of $250.8 million is $6.1 million less than the currently authorized spending level of $256.9 million.

All the money comes from the federal-state Medicaid program, with the federal government providing a little more than 50 cents on the dollar.

Budget officials who briefed reporters on Governor Raimondo’s overall fiscal proposal in January emphasized her efforts to close a projected $200 million deficit in the next fiscal year while promising that Medicaid recipients, including those with developmental disabilities, will not see a reduction in services. 

The Office of Management and Budget (OMB), which advises the governor, was asked how it approached BHDDH spending as it set a target for the next fiscal year.

OMB “makes adjustments based on estimated growth rates in the cost of providing services,” said a spokeswoman, but she acknowledged that those estimates did not take into account the current, actual costs.

The spokeswoman said that OMB worked from the $256.8 million budget enacted last year for the existing budget cycle and incorporated “personnel and entitlement adjustments,” like a slight increase in the federal reimbursement rate for state Medicaid expenditures, as well as “certain trend growth rates.”

From there, OMB applied a 10 percent reduction, as it has across the board for all state agencies, to deal with the state’s overall projected $200 million deficit, she said. (Raimondo still found money for new programs.)

One hurdle faced by BHDDH in presenting its case for funding that it is not represented at a twice-yearly meeting at which officials grapple with trends in Medicaid spending, even though the department's services are entirely funded by the federal-state program. 

In November and May, the State Budget Director meets with the fiscal advisers of the House and Senate in the caseload estimating conference to reach consensus on the latest Medicaid expenses and provide updated information for budget projections. 

The law setting up the caseload estimating confernce excludes both BHDDH and the Department of Children, Youth, and Families (DCYF), another agency funded by Medicaid. Companion bills pending in the House and Senate would require both BHDDH and DCYF to participate. 

The most recent caseload estimating conference was in early November, about three weeks after BHDDH submitted its budget to OMB. 

At the time, BHDDH had about a year’s experience with a revised assessment method that determines the individualized level of service authorized for adults with developmental disabilities. The result was an added $17 million in developmental disability costs, according to a report of the House fiscal staff.

Raimondo’s budget summary suggests that BHDDH has been reviewing the validity of the assessment. But BHDDH director Rebecca Boss said in an interview in January that “it’s probably a misnomer to call it a validation of the SIS-A.” She referred to the acronym for the assessment, called the Supports Intensity Scale –A.

The American Association on Intellectual and Developmental Disabilities, the developer of the instrument, “have a scientifically rigorous study that this is a valid tool,” Boss said.

“For us, it was validation of our implementation of the SIS-A, not necessarily the tool itself. It’s a validation of our implementation, and that’s probably a better way to say it,” she said.

BHDDH found 46 cases in which the assessment resulted in individual authorizations that were higher than warranted. Boss said those authorizations were corrected, and all the social workers who do the assessments were retrained in how and when to ask supplemental questions that might lead to higher funding.

“We’re not planning to discontinue using the SIS-A,” she said. “We are planning to make sure we are using it correctly.”

In other words, the prime driver of higher per-person costs for developmental disability services is not going away.

And it will take several years before all adults with developmental disabilities  - some 3700 receiving services - have all been assessed using the new SIS-A.

From 2011 until November, 2016, BHDDH had been using the predecessor to the SIS-A, which was enmeshed in controversy, with accusations by families and providers that assessors humiliated them and the state manipulated results to artificially depress funding authorizations. 

Successful appeals of individual funding allocations cost the state more and more money until the supplemental payments reached a total of about $23 million in the last fiscal year.

The U.S. Department of Justice has criticized the way the state used the original SIS in findings that led to the 2014 consent decree. Two years later, in May, 2016,  the SIS figured in a multi-faceted compliance order issued by Judge McConnell.

He said state policy must require all assessments to be conducted “in a manner that is consistent with individuals’ support needs, separate and apart from resource allocations.”

Six months later, the state inaugurated the SIS-A. Martin, the CPNRI director, said her membership tells her the SIS-A still poses some challenges to families, but it is far more accurate than the previous version. 

 

 

 

RI Revises Supported Employment; Providers And Families Invited To Information Sessions

By Gina Macris

The second year of a program to help Rhode Islanders with developmental disabilities find jobs will offer extra bonus money to encourage financially strapped private agencies to seek new clients, particularly young adults.

Zanchi     Photo by Anne Peters  

Zanchi     Photo by Anne Peters  

The state began the “performance-based” program last January to avoid federal court sanctions for failing to implement a 2014 consent decree aimed at giving individuals with disabilities greater access to regular jobs and integrated non-work activities.

“We’ve learned a lot in this first year,” said Kerri Zanchi, Director of the Division of Developmental Disabilities (DDD). Zanchi, the first developmental disabilities professional to head DDD in at least a decade, began work in Rhode Island shortly after the supported employment program kicked off a year ago.

Zanchi elaborated on the status of the program, in which private agencies provide supportive job-seeking and job-retention services, during a telephone interview Jan. 5.

She said that in the initial contract year, which ended in December, 22 private agencies offered supported employment services to about 440 adults with developmental disabilities, with about 150 gaining employment at minimum wage or higher.

In the coming year, Zanchi said, she hopes the opportunities for enhanced performance payments and other changes prove “more responsive to the needs of consumers” and that the number of providers will expand. 

DDD will host information sessions Monday, Jan. 8 and Friday, Jan. 19 for private providers seeking to renew their contracts or establish new ones and for so-called “self-directed” families, who take on the design and direct supervision of a loved one’s activities. Few of these families have been able to participate in the performance-based program during its first year, according to anecdotal reports. 

A key addition to the menu of performance payments to providers is a bonus of $600 for each new client who signs on for employment-related services, or $1,000 for young adults who left high school between 2013 and 2016. These bonuses are due once the new client has received 20 hours of employment-related supports.

The consent decree places particular emphasis on young adults with intellectual or developmental disabilities, because investigators for the U.S. Department of Justice believed they are at heightened risk for isolation and segregation as they move from high school to adult services.

The consent decree draws its authority from the Olmstead decision of the U.S. Supreme Court, which reinforces the mandate for integrated services in the Americans With Disabilities Act

The young adult group also is the only segment of the consent decree population – more than 3,000 individuals altogether –for which the state is significantly out of compliance with court approved targets for job placement.

A reluctance among established agencies to expand their client roster has resulted in limited choices for the families of young adults; prompting them to direct their own services. But that choice also has made it generally more difficult to access the supported employment program, according to various reports about families’ experiences during the first year of the program.

Providers have told state officials that in many cases they can’t take on new clients because of low reimbursement rates and high staff turnover, and because the bonuses of the initial cycle of the supported employment program did not pay for the costs both of training new workers, as well as providing the actual services.

The graduation rate for a tuition-free training program offered by the Sherlock Center on Disabilities at Rhode Island College is 40 percent, with students dropping out for a variety of reasons, most of them related to high turnover and short-staffing at the provider agencies.  

In the second year, providers can expect an increase of $460 for training each new job coach, from $350 to $810 per trainee, according to materials from the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH), which were released by Zanchi.

The information sessions will be at the Arnold Conference Center in the Reagan Building of the Eleanor Slater Hospital, 111 Howard Ave., Cranston, Monday, Jan. 8, from 2 to 4 p.m. and Friday, Jan. 19, from 9 to 11 a.m.

In 2016, just after a U.S. District Court judge ordered the state to come up with a new “reimbursement model” that would give adults with developmental disabilities access to regular jobs. Shortly after that, the General Assembly allocated $6.8 million in state funds to finance what became the performance-based supported employment program.

Besides the bonuses, the revised program includes increased allocations – a total of $8,000 a year per client, according to the latest BHDDH figures – for provider reimbursements for employment services.

Zanchi said that the original $6.8 million allocation will continue to fund the first six months of the second year of the performance-based program until June 30, when BHDDH expects to return an estimated $2 million to the state.

The return of the estimated $2 million in unused supported employment funds was part of a deficit reduction plan outlined by BHDDH director Rebecca Boss Nov. 30 to close an estimated $15.9 millionf departmental deficit, including $12 million in developmental disabilities.. But it is well-understood within BHDDH that from a fiscal perspective, supported employment must continue because it is a court-ordered service.  

BHDDH has requested new funding, with projected utilization based on the first full year of programmatic experience, for the state’s next fiscal year beginning July 1, Zanchi said.

She did not say how much BHDDH  will seek for supported employment. Governor Gina Raimondo is expected to submit her budget to the General Assembly later this month.

RI Rate Cuts To DD Providers Or Wait Lists For Services Loom Without More Funding For BHDDH

By Gina Macris   

Rhode Islanders with developmental disabilities would face “drastic measures” such as waitlists for services or reductions in the amounts the state pays private organizations providing these supports if their funding agency must resolve a sizeable budget deficit by the end of the fiscal year June 30.

Rebecca Boss                       Photo By Anne Peters

Rebecca Boss                       Photo By Anne Peters

Rebecca Boss, director of the agency, the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH), reached that conclusion in a Nov. 30  letter to the director of the state budget office and the finance committee chairmen of the House and Senate.

She pledged to keep working  “to minimize the anticipated disruptions and destabilization that would result from such measures on our vulnerable populations.”  In the last several years, the General Assembly has covered BHDDH deficits with supplemental funding.

The letter outlined a corrective action plan for reducing the deficit, an estimated $15.9 million in in state spending, including about $12 million from developmental disabilities programs and nearly $4 million from the Eleanor Slater Hospital. Without a state match, roughly the same amount in federal Medicaid dollars also would evaporate.

The corrective action plan described a variety of cost-cutting initiatives that at best, would address less than half the overall shortfall, but Boss’s letter did not add up the total savings. BHDDH officials were not able to respond immediately to several detailed questions about the corrective action plan. 

Corrective action plans are required whenever a state agency runs a deficit. But the BHDDH plan raises questions about its future ability to comply with a 2014 federal consent decree that requires Rhode Island to integrate adults with developmental disabilities in the community to comply with the Americans With Disabilities Act (ADA).

Integrated services, which require small staff-to-client ratios, are inherently more costly than the segregated, facility-based programming Rhode Island has used in the past, in which one person can keep an eye on larger groups of people gathered in one room.  An over-reliance on sheltered workshops and day centers put Rhode Island in violation of the ADA's integration mandate, which is spelled out in the Olmstead decision of the U.S. Supreme Court, according to findings of the U.S.Department of Justice.

Rhode Island has never been in complete compliance with the incremental integration goals of the consent decree and in the spring of 2016 came close to being held in contempt of court over lack of funding, among other issues. Since then, as long as the state has put additional money and professional expertise into efforts to improve services, it has avoided sanctions.

Most recently, during a U.S. District Court hearing Nov. 30 – the same day Boss turned over her corrective action plan – the judge in the consent decree case  repeatedly brought up his concerns about money to fund the services required by the consent decree. John J. McConnell, Jr. said he would be keeping an eye on the budget process, both at the state and federal levels.

The BHDDH plan proposes returning to the state a $2 million balance in funds that had been allocated to a performance –based supported employment program that responded to a court order to help more adults with developmental disabilities find jobs. In the plan, Boss said that BHDDH would continue to provide funding for supported employment. Anecdotal information from providers and families has indicated that, even with the performance-based program, employment services have not been available to all who wanted them.  

Boss, meanwhile, outlined other cost savings. She said correcting errors in the needs assessments of 46 adults with developmental disabilities will result in $400,000 in savings, once the individual funding authorizations for those persons are reduced.

Because of widespread complaints that the original assessment shortchanged individual needs, resulting in routine awards of supplemental funds, BHDDH adopted an updated version of the standardized interview about a year ago that was said to be more accurate.

The newer assessment contributed to higher per-person costs that are reflected in much of the $12 million projected deficit in developmental disabilities, Boss said. The 46 errors in assessment occurred because interviewers did not correctly utilize a certain group of questions in the new interview process, she said.  

At the start of the current fiscal year in July, with rising costs from the new assessment already apparent, BHDDH imposed stringent health and safety standards for awarding supplemental funds on appeal.

Of the $12 million projected deficit in developmental disabilities, $4 million is related to “various” cost-cutting initiatives in the current fiscal year which BHDDH does not expect to achieve, Boss said.

She did not describe these unachieved savings in any detail, except to attribute $500,000 to the department’s inability to move residents out of three of five state-run group homes that had been scheduled to close. The remaining two homes are special care facilities that are being consolidated and will close, Boss said. She has said such special care facilities do not comply with a new Medicaid Final Rule on Home and Community-Based Services.

In the last quarter of the fiscal year, beginning April 1,  BHDDH plans to cut the daily reimbursement rates for residents of group homes with relatively mild developmental disabilities, those assigned to the lowest two levels ( labeled A and B) of a five-tier funding scale. This measure is expected to save $200,000.

Additionally, BHDDH has a “continuing commitment” to reducing the population of group homes by 110 during the current fiscal year, which would bring an estimated savings of $900,000, Boss said. She did not elaborate.

In Rhode Island, the primary alternative to group homes is shared living, in which a person with a developmental disability lives with a family in a private home.

During the 27 months between July 1, 2015 and Sept. 20, 2017 the number of individuals in shared living increased by 92, according to BHDDH figures, from 268 to 360. The breakdown includes 40 in the fiscal year that ended July 1, 2016 38 in the fiscal year that ended July 1, 2017, and 14 in the first three months of the current budget cycle.

At the Eleanor Slater Hospital, all but $900,000 of the nearly $4 million shortfall can be attributed to salaries and benefits, including $2.1 million in overtime, Boss said.

The hospital has faced numerous problems, most critically a preliminary report from the Joint Commission in September that signaled Eleanor Slater would be denied accreditation because of unsafe facilities. The report prompted an increase in staffing so that patients are checked every five minutes.

BHDDH plans to move patients out of the substandard facilities, but that consolidation is behind schedule.

 

RI Olmstead Judge Says He'll Be Keeping Eye On State And Federal Funding For Disability Services

By Gina Macris

John J. McConnell, Jr., the U.S. District Court judge overseeing changes in Rhode Island’s developmental disability service system, has signaled that that future funding of the social services is very much on his mind.

During a hearing Nov. 30 in Providence, McConnell listened to the state’s summary of the latest progress and the work still to be done to achieve the goals necessary to transform Rhode Island’s segregated services for persons with developmental disabilities into an integrated, community-based model. The transformation would bring Rhode Island into compliance with the U.S. Supreme Court Olmstead decision clarifying the integration mandate of the Americans With Disabilities Act.

After Kerri Zanchi, the state Director of Developmental Disabilities, had finished her prepared remarks, McConnell interjected the observation that the necessary services are all “contingent on funding.”

“Funding is a key issue,” both at the state and federal level, he said. 

 Zanchi, too, expressed concerns, saying the developmental disability community needs advocacy to make its case on budget issues.

Most recently in Washington, disability rights advocates have said that the proposed tax cuts now before Congress would result in reductions in spending through Medicaid, the federal-state program that pays for services required by a 2013 interim agreement and a broader 2014 consent decree between the state of Rhode Island and the U.S. Department of Justice.

In addition, the federal government’s re-direction of some vocational rehabilitation funding from Rhode Island to Texas has triggered a waiting list, effective Dec. 1, for future clients of Rhode Island’s Office of Rehabilitation Services (ORS), which is involved in implementing both the 2013 and 2014 agreements.

No one currently served by ORS will be affected, but by the time the court is scheduled to reconvene in April, the waiting list could include applicants for services who are covered by the consent decree or the interim agreement.

Meanwhile, Rhode Island’s implementation of the agreements has contributed to a projected cost overrun of almost $26 million in federal and state Medicaid funds for developmental disability services in the current fiscal year, and the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) is under pressure to find ways to cut costs.

McConnell said he hoped that state officials will take into consideration the requirements of the 2014 consent decree (and the more limited interim agreement) as they look for cuts in social services in the coming months.

He said he wanted it known that “the third equal branch of government is watching.”

State Details Compliance Efforts  

The Nov. 30 hearing concerned those who are covered by the so-called “Interim Settlement Agreement,” originally 125 former students at the Birch Academy at Mount Pleasant High School in Providence who at one time were funneled into jobs paying sub-minimum wage at the former sheltered workshop, Training Through Placement (TTP) in North Providence. 

The latest update puts the current number in this group at 91 individuals whose cases are still open at the state Division of Developmental Disabilities (DDD), said Zanchi, the division director.

She summarized the state’s progress in working with them:

  • 51 have jobs in the community paying at least minimum wage
  • 21 are unemployed but job-hunting, with support 
  • 7 are currently inactive
  • 12 have chosen not to work but are receiving integrated day services from a total of 12 providers.

In a report to the court submitted the eve of the hearing, an independent monitor, Charles Moseley, framed the employment statistics differently.

He zeroed in on an order from McConnell in June that the state follow up on 46 unemployed members of the class protected by the interim agreement of 2013, including 34 who had never had a job in the community.

Among the group of 46, Moseley said the state had made 11 job placements as of the end of October. That is most of the goal of 15 placements that must be made by March 23, 2018. An additional 16 placements must be made by June 23, 2018, and target dates for the remaining 15 placements are to be determined, he said. (Some of them have indicated they don't want to work.)

'Underperformance' Of One Provider Hurt State

Much of the testimony, as well as Moseley’s comprehensive report, concerned Community Work Services, the successor to TTP, the sheltered workshop at the center of the U.S. Department of Justice investigation that led to the interim agreement of 2013.

CWS serves 57 of the 91 individuals covered by the interim agreement, according to Zanchi. (CWS’ own report to the monitor earlier in November put that figure at 59, with 5 of the 59 transitioning to other providers.)    

Of the CWS clients covered by the interim agreement, 25 belong to the group of 46 unemployed individuals the judge said needed special attention, according to Moseley’s report. The rest are served by other providers.

Zanchi said the “underperformance” of CWS “has directly contributed” to the state’s non-compliance with the interim agreement’s targets for employment and integrated non-work services. CWS is a subsidiary of Fedcap Rehabilitation Services of New York.

By now, the state was to have found jobs for all members of the former Birch and TTP group who made an informed choice to seek employment. 

Zanchi said the current CWS leadership has shown a “solid grasp of the significant change needed in their organizational structure” as well as the fact that it needs to reach performance goals “expeditiously.”

She emphasized that CWS’ “re-engagement of families” to support integrated services “cannot be understated.”

She shared the story of one young CWS client and the client's parents, who in a two-year span, had gradually shifted from adamant opposition toward warm embrace of the idea of employment. The client ow volunteers at the Rhode Island Community Food Bank and a local food pantry and meets with a job developer each week to explore part-time job opportunities, Zanchi said.  

CWS Nearly Lost License

In May, CWS had come under fire – and was close to losing its license to operate in Rhode Island – for substandard programming, according to Moseley.

Since then, there has been a nearly complete turnover of staff and management at CWS, which has drawn up a new blueprint for change in keeping with principles of “person-centered planning,” putting the individual’s needs and preferences at the center of customized plans for immediate services and long-term goals. 

CWS also has begun a pilot program called “Employment Without Walls” with 7 clients who are hunting for jobs. 

The CWS plan was included in a 59-page report to the court from Moseley. Also included in Moseley's report was an evaluation from William Ashe, a Vermont-based consultant, who worked with Moseley in conducting a three-day, on-site review of CWS in early October.

Ashe, who had first evaluated CWS in October, 2015, said that “CWS is very different from the organization that was visited some two years ago.”

At the same time, Ashe said that “It was my hope that more gains would have been made over these 24 months than has been the case, particularly in the degree of sophistication of the person-centered planning process.” He noted that CWS, led by program director Lori Norris, “appears committed to restructuring the services and supports that it provides to comply with the ISA (Interim Settlement Agreement of 2013) and state regulations.“

In an interview, Ashe said, Norris also touched on financial challenges, which plague all service providers in Rhode Island as they struggle to help BHDDH meet the requirements of the federal mandates and still remain solvent.

According to Ashe’s report, Norris said “her superiors at FedCap are committed to success and will assure the proper level of staffing support even if this resource level is greater than what the current billing authorizations will support.”

CWS’ probationary license ends Dec. 31 and BHDDH must decide whether the agency will continue operating in Rhode Island.

The Massachusetts operations of CWS, a Boston-based agency, are now headed by Craig Stenning, Rhode Island’s former BHDDH director, who is also listed as Fedcap’s Senior Vice President for the New England region on the Fedcap website.  

In his report, Ashe said Norris “was candid in her comments” during the October interview, “stating that the CWS program status at the time of her appointment (six months earlier) was very inadequate across most areas of performance.

“She described her efforts over this past six-month period to change the culture of CWS,” a drive that included a large turnover of staff.

CWS Tries Turnaround

After visiting KFI, a model program for integrated services in Maine, Norris told Ashe, she took several steps at CWS.

Norris, according to Ashe’s report, has:

  • Stopped renovations at the former TTP building, instead planning to abandon any reliance on a facility for integrated services as of Jan. 1. (The former TTP building had been ordered closed to clients by the state in March, 2017 because of unsafe conditions. CWS’ license was suspended for a few days until it found a substitute location in quarters owned by the Fogarty Center.)  
  • Discontinued the use of vans to transport clients, instead opting to arrange for staff members to use their own cars on the job.
  • Changed the job title of direct support staff to community advocate, saying she believes “this title better reflects the culture change she wishes to establish and more accurately conforms to the expectation for how she wants staff to approach their work.”
  • Adopted a flexible work schedule for staff, so that they are available evenings and weekends to support clients who work outside normal business hours.

 

Problems Extend Beyond CWS

Moseley, the monitor, noted in his report that the non-work services received by CWS clients do not meet the requirements of the interim agreement or the statewide consent decree for integrated activities. 

These activities are intended to “provide individuals with disabilities with opportunities to fully engage with people without disabilities in the mainstream” of social life as well as work, he said.

Practical and effective strategies for achieving these goals are not clear, not only at CWS but across the developmental disability service system, Moseley said.

To address the problem, the state Division of Developmental Disabilities (DDD) has articulated guiding principles and standards for integrated day services. Through the Sherlock Center at Rhode Island College, DDD also offers training in implementing successful strategies for integration, Moseley said, but he recommended the training be expanded.

Another, related problem is a mismatch between existing services for individuals and their long-range plans.

In a court-ordered review of individual records documenting current services and future plans, DDD found that in 58 percent of the cases, individuals’ ongoing activities didn’t necessarily help them achieve their goals, Zanchi told the judge.

As a result, DDD has taken steps to merge short-range and long-range planning into one streamlined and holistic process that encourages providers to think in terms of individualized services that can help develop skills and interests that will help a particular person realize long-term aspirations.  

In addition, Zanchi said, DDD has developed a separate written guide, or rubric, for reviewing the quality of these individualized plans.

Zanchi Praises 'Collective Vision'

Zanchi concluded that she is “confident that there continues to be many areas where progress is clear,” recognizing that “quality is still developing” in services available to adults with developmental disabilities.

Zanchi said the progress is the direct result of a “collective vision that is guiding the work and transforming services.”

“We are building a remarkable partnership with the true experts of the DD system,” she said, referring to consumers, families, providers, business partners, community advocates as well as DD and ORS staffers.

They are all “invested in this progress and are at our table to strengthen our system to achieve these outcomes,” Zanchi said.

Click here to read the monitor's report.

Future of RI Fedcap Agency Still Unclear; State Continues To Collect Evidence For Final Decision

By Gina Macris

With less than two months remaining before the state of Rhode Island decides whether to shut down a subsidiary of the New York-based Fedcap Rehabilitation Services, licensing officials at the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) are still collecting evidence that will have a bearing on the state’s decision.

The performance of Community Work Services (CWS), which also has come under criticism by federal officials, is expected to figure in a U.S. District Court hearing Nov. 30 about a 2013 settlement of disability rights violations involving CWS and its predecessor, the now-defunct sheltered workshop Training Through Placement (TTP.)

In an interview Nov. 3, the director of licensing for BHDDH, Kevin Savage, said that the probationary status of CWS, in effect for nearly a year, “has not been resolved.”  Licensing regulations place a 12-month limit on probation.

 A federal court monitor said during a court hearing in May that the number of former TTP clients who had found jobs had been “essentially flat” for the previous four years. A lawyer for the U.S. Department of Justice also cited a lack of progress that was evident during a site visit earlier in the spring.  About half of individuals protected by the 2013 agreement – 62 individuals at last count – are currently served by CWS.

In an interview Nov. 3, Savage, the BHDDH licensing administrator, said that the most recent "monitor’s report is primarily about the programming, and the programming issue is not resolved.

“We’re reading the monitor’s reports and our own reports,” Savage said, and “we are not satisfied with the program resolution.”

Savage said that BHDDH will continue – “and I want the word 'continue' to be clear” – to look at “every aspect of what CWS does, including payment structures, including respite (care), and including how they work with families and participants – everything.”

Savage also said, “I think it’s okay to say we are accumulating evidence. They (CWS) know that, and I think it’s okay for the public to know that. The evidence speaks to whether they should be shut down, or whether they should not be shut down. Evidence does that.”

“Our goal, and our only goal, is to ensure that participants have the best service available that is possible,”  he said. “We’ve communicated that clearly to the providers we work with and the families we work with. Our job is not to protect businesses. Our job is to protect participants.”

CWS has been on probation since the beginning of 2017. BHDDH licensing officials shut down its operation at the former TTP building at 20 Marblehead Ave., North Providence, in March because of unsafe conditions - a problem separate from programmatic concerns - but the agency re-opened with state permission in different quarters a few days later.

In this and any other probationary case, Savage said, the public has the right to know the “final agency action.”  Adverse decisions may be appealed by the agencies in question, he said.

The performance of CWS is entwined in the state’s accountability to the federal court for satisfying the demands of the 2013 settlement agreement that protect special education students at Mount Pleasant High School, including the former Birth Academy, and former clients of TTP - a total of 126 individuals.

A broader agreement between the state and the DOJ signed in 2014 covers all adults with developmental disabilities who have at one time been segregated in either sheltered workshops or day centers - more than 3,000 people. .

In connection with the so-called  "Interim Settlement Agreement" of 2013, the federal court monitor, Charles Moseley, said in a report to the court in September that the state has missed two deadlines in an order issued by Judge John J. McConnell, Jr: They are

  •  A July 30 deadline for improving the quality of individual career development plans among CWS clients.
  • A June 30 deadline for verifying the accuracy of data reported by CWS on its clients’ progress.

So-called “career development plans” describe how current services and plans for the near future fold into blueprints for life-long work goals that are supposed to take into account both the needs and preferences of individuals with developmental disabilities.

The November 30 hearing is listed on the U.S. District  Court calendar in connection with the statewide 2014 consent decree, but the state's interim Consent Decree Coordinator, Brian Gosselin, said recently at a public forum on developmental disability issues that the session will deal instead with the more narrow Interim Settlement Agreement of 2013, which was last heard in late May. A separate hearing on the status of the statewide consent decree is expected to be scheduled for the end of January, six months after its most recent hearing in late July.

 

RI BHDDH Running Projected $34.6 Million Deficit; DD Services Account for $26 Million Of Shortfall

By Gina Macris

Rhode Island’s efforts to improve services to adults with developmental disabilities - spurred by ongoing federal court oversight – will result in cost overruns of almost $26 million by next June, the end of the current fiscal year, according to projections from the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH).

The projected $26 million shortfall is the largest in recent memory for developmental disability services, which typically have run $4 to 6 million over budget during a fiscal year.

In the first quarter spending report to the State Budget Officer, Thomas Mullaney, Rebecca Boss, the BHDDH director, said there are two main drivers of the projected deficit:

  • Increased costs attributed to an updated assessment for clients of the Division of Developmental Disabilities, the Supports Intensity Scale–A, or SIS-A, which is generally regarded as more accurate than the previous version in capturing individuals’ support needs, particularly for those with complex medical and behavioral issues.
  • An increase in supplemental authorizations that represent successful appeals of funding levels awarded through fiscal calculations made from the results of the original SIS or the SIS-A.  

BHDDH has asked the state Budget Office to consider a supplemental appropriation for the current budget cycle to cover much of the shortfall, with Boss saying the increased spending is consistent with current caseload projections.

But BHDDH also proposes cutting about $5 million from supplemental appropriations before next June 30. Boss has ordered officials to deny requests from individuals with developmental disabilities for supplemental funding, except in emergencies related to health and safety, including the risk of hospitalization. She also made an exception for any “court-ordered services” which may occur.

The order to hold the line on supplemental funds is likely to have widespread impact on individuals and their families, who must make the same request for extra money annually if they believe they have been shortchanged by the SIS or the SIS-A.  Alternatively, they may request a re-assessment.

In her letter to Mullaney, Boss said BHDDH is working to address the current year’s projected deficit and is determining “potential courses of action which would meet client needs, be accountable to regulatory entities, and meet fiscal constraints.”

The Office of Management and Budget is working with BHDDH to “thoroughly review its options,” a spokeswoman for Mullaney said Nov. 9.

BHDDH requested $22 million for supplemental payments in the current budget, according to testimony before the General Assembly last spring.

But in a recent corrective action plan, the department said it authorized over $28.2 million in supplemental payments – more than 10 percent of all payments to private providers - during the fiscal year that ended last June 30. Actual expenditures exceeded $22.3 million.

“The past volume and approval of supplemental authorizations is unsustainable,” BHDDH said.

The plan sets a limit of $18.6 million for supplemental payments in the current budget cycle and reduces the ceiling to $14.4 million in the fiscal year beginning next July 1, with the assumption that the number of requests for supplemental payments will decline as more clients are assessed through the updated SIS-A. 

The corrective action plan also notes that requests for supplemental funds that are denied by BHDDH may be appealed to the Executive Office of Health and Human Services.

The projected $26 million shortfall in the Division of Developmental Disabilities represents the lion’s share of an overall $34.6 million departmental deficit, based on first-quarter spending, which Boss outlined in an Oct. 27 letter to Mullaney, the State Budget Officer.

The state is under pressure from the U.S. District Court to improve the quality of its daytime services for adults with developmental disabilities by moving its system from isolated day centers and sheltered workshops to supported employment at regular jobs paying minimum wage or higher. Rhode Island also must increase the availability of integrated non-work activities. These mandates are spelled out in two agreements with the U.S. Department of Justice, in which the state must correct correct an overreliance on segregated facilities that violates the Americans With Disabilities Act.

The original SIS, accompanied by a $26 million reduction in developmental disability funding, was introduced by BHDDH and the General Assembly in 2011 as an equitable way of distributing available resources, although advocates complained that it was nothing more than a device to control costs, at the expense of some of Rhode Island’s most vulnerable citizens.

In succeeding years, that dollar amount was restored, but the service system was fundamentally altered, resulting in wage cuts, higher worker turnover, and a dependence on lower–cost services in segregated facilities that can be supervised with fewer staff.  The U.S. Department of Justice began its investigation into these facilities - sheltered workshops and day centers - in 2013.

On an individual basis, persons with developmental disabilities, their families, and service providers routinely appealed the funding awarded through the SIS, and at one point supplemental payments became routine.

In the meantime, there were were so many complaints about the SIS that the department ultimately decided to shift to the SIS-A.

But 13 months ago, when BHDDH submitted projections that ultimately went into the current budget, it had no experience with the SIS-A. The revised assessment was introduced in November, 2016. By springtime of this year, however, Boss had enough data to tell legislators that the SIS-A was resulting in higher per-person funding allocations. And she reported that the overall numbers of individuals using  developmental disability services was on the rise.

For the future, Boss envisioned a shift away from supplemental payments as the revised assessment tool better responds to individuals’ funding needs.

Of the overall $34.6 million projected BHDDH deficit, nearly $8.7 million can be attributed to staffing and overtime increases at the Eleanor Slater Hospital for stepped-up patient monitoring in light of a recent warning that the facility may lose accreditation because aging buildings pose too many risks that patients may harm themselves. A risk assessment for the Eleanor Slater Hospital is currently underway, and the results will inform a request for supplemental funding to remedy concerns of the hospital accrediting agency, the Joint Commission, Boss said.

Click here for the BHDDH first quarter spending report.

RI Has Missed Two Court-Ordered Deadlines For Holding Troubled Fedcap Agency Accountable

By Gina Macris

Continuing difficulties at the former sheltered workshop that stood for everything wrong with Rhode Island’s developmental disability system have caused new noncompliance problems for the state in U.S. District Court. 

The problems revolve around one private agency, Community Work Services (CWS), a program of the New York-based Fedcap Rehabilitation Services. But the state is accountable to the court for the way it manages its service vendors and for ensuring that adults with developmental disabilities receive high quality supports under provisions of 2013 and 2014 agreements with the U.S. Department of Justice (DOJ).

 In both settlements, Rhode Island agreed to end segregation of adults with developmental disabilities – a violation of the Americans With Disabilities Act (ADA) – and instead to offer them the choice of supported employment and integrated non-work activities.

Community Work Services (CWS) was hired in 2013 to correct ADA violations at the former sheltered workshop, Training Through Placement (TTP.)  But CWS itself has operated under one form or another of state supervision for 17 months and nearly lost its license earlier this year.

Missed Deadlines

According to the latest report of a federal court monitor, the state has missed two deadlines; one, a July 30 date for improving the quality of individual career plans and another, June 30, for verifying the accuracy of data reported by CWS on its clients’ progress. 

Despite the state’s efforts to resolve inconsistencies in data, “problems continue to exist with the information provided by CWS,” according to a Sept. 7 report  by the monitor, Charles Moseley, to U.S. District Court Judge John J. McConnell.  

The state, the monitor, and the DOJ use that data to determine whether CWS is following the requirements of the ADA agreements. 

Blueprints For The Future

And so-called “career development plans” are not supposed to be just paperwork, but blueprints that allow officials to see in an instant how the services a client currently receives fit into individualized short-term and long-term goals. 

The plans are intended to reflect a key principle embodied in the ADA; that people with disabilities have choices in how they live their lives.  

The monitor also said 70 percent of the clients’ career plans were “unacceptable” and had not been improved in the month after the judge’s July 30 deadline, despite the state’s efforts.

For most of the 64 Individuals who are active CWS clients, the daily activities and yearly individual service plans didn’t line up with the long-range career development plans, according to Moseley.  

In other cases, the long-range plans were “well done”, but the plans were “not being implemented in a manner which aligns with the participants’ interests,” Moseley said.

Neither the DOJ nor the judge have responded on the record to Moseley’s latest findings, although McConnell has said in the most recent hearing on the so-called “interim settlement agreement” of 2013 that he considers himself personally responsible for defending the rights of about 125 individuals protected by the agreement.

Former State Official Now Heads CWS

Community Work Services, a Boston-based agency, came to Rhode Island in 2013 as a program of Fedcap, hired by Craig Stenning, then director of the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) to get a jump start on turning around the state’s developmental disability system in the wake of the interim settlement agreement of 2013 and the broader consent decree of 2014.

Between 2013 and 2014, Fedcap was awarded a total of about $1.7 million in state contracts. In 2015, Stenning joined Fedcap’s senior management.

As part of the state’s arrangement with Fedcap, CWS took over Training Through Placement (TTP), which had used the Birch Academy at Mount Pleasant High School as a feeder program for its sheltered workshop. There, adults with developmental disabilities performed repetitive tasks at sub-minimum wages, sometimes for decades, even when they expressed a desire to do something else.

At the hearing in May, Moseley, the monitor, told the judge that the number of former TTP clients who have found regular jobs in the community has remained “essentially flat” for the last four years. Most of the former TTP clients still received services from CWS. 

At that point, CWS itself had operated under one or another form of state supervision since May, 2016, for both programmatic deficiencies and substandard facilities at the former TTP building in North Providence.

CWS Nearly Lost License

In his most recent report Sept. 7, Moseley disclosed that state officials had notified CWS in early May – about two weeks before the federal court hearing - that they intended to revoke the agency’s license. But state officials changed their minds after a conference with CWS representatives, the monitor said.

Instead of revoking the license, the state Division of Developmental Disabilities (DDD) decided to give CWS one last chance by continuing the agency’s probationary status from July 1 to Sept. 30, with the possibility of only one more extension, until Dec. 31. The current status of the license is not clear. 

Moseley said CWS has brought on new staff, including a deputy director, a job developer and a new position with responsibilities for data and reporting.

According to the CWS website, it also has a new executive director, Craig Stenning, Fedcap’s Senior Vice President for the New England Region and the former BHDDH director.

Less than a year after Stenning’s departure from BHDDH – Governor Gina Raimondo failed to reappoint him – the DOJ and the monitor asked the U.S. District Court for assistance in enforcing the companion agreements of 2013 and 2014, citing a lack of progress by the state.

As a result, McConnell took up the combined cases and held the first hearing in January, 2016. Since then, he has held periodic reviews from the bench.   

Extensive State Oversight

Moseley’s Sept. 7 report described the extensive state supervision dedicated to CWS.  Licensing officials make monthly regulatory reviews of CWS. In addition, there are unannounced monthly visits coordinated with the state’s chief quality improvement officer for developmental disabilities. Supplementary phone calls and emails from state officials to CWS occur at least once a week.

Meanwhile, the state’s chief employment officer for developmental disabilities provides on-site technical assistance to CWS job developers, reviewing day-to-day activities and observing so-called “person-centered” planning meetings that are designed to put the needs and preferences of the clients first.

In earlier reports, Moseley has said the state simply does not have enough personnel to provide a fully functioning quality assurance program across the board to verify that some three dozen service providers are complying with the “person-first” principles and practices of the ADA. He has required DDD to take steps to create one.

DDD has 24 caseworkers and a handful of supervisory personnel and support staff to manage the needs of a total of about 4,350 individuals.  (About 3,700 receive day-to-day services,)

After learning that there had been little change at CWS since 2013, McConnell said he was angered on behalf of those who are “years late in terms of getting the services that the state agreed to,” according to a transcript of the hearing on May 23.

Addressing lawyers and state officials before him, he said, “The truth is that we all, you and you and me and then everybody else, have these hundred-odd people’s rights in our hands. “

McConnell continued. “I don’t take that lightly. I will use whatever powers that I have available to me to ensure that those individuals aren’t forgotten. Dr. Moseley always reminds me that we’re talking about individuals here and not alphabet soups and programs and whatnot. And this time it’s got to stick.”

Praise For Providence and Mount Pleasant

McConnell concluded on what he described as an “optimistic note” for officials of the city of Providence, who during the last few years have made substantial changes at Mount Pleasant High School, enabling special education students who otherwise would have been completely isolated to become part of the broader student body and to have school-to- work experiences in the community.

“Keep up the good work,” the judge told school and city officials. “It doesn’t mean you’re at the finish line, but you’ve showed us that it can be done.” 

A version of this article also appears in ConvergenceRI

 

 

Two Pilot Programs, Two Approaches to Supported Employment, Aired at RI DD Task Force Meeting

By Gina Macris

(This article (been corrected.)

Between January and mid-August, about one in four Rhode Islanders with developmental disabilities who were enrolled in a new supported employment program landed jobs, with help from private service agencies funded through the state Division of Developmental Disabilities (DDD).

But there are signs of strain on the ability of these agencies to train the workers they need to continue to deliver results over the long haul.

 In the meantime, the Office of Rehabilitation Services (ORS) has started a much smaller pilot project , now in its second quarter of operation.

The two pilots take different approaches to funding employment-related supports for adults with developmental disabilities.

The DDD program adopts a fee-for service reimbursement model – based on the severity of a client’s disability - and a complicated billing mechanism that is similar to the one set up six years ago by the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) for funding all developmental disability payments to private providers.

There is no provision for funding up front to support agencies’ costs for training workers to provide employment-related services.

The ORS project offers a flat rate of $7,000 per client, with $1750 up front so provider agencies can train and assemble a team of employment specialists. Providers are eligible for two additional quarterly payments of $1750 as long as they document the progress the clients are making.  A final payment  of  $1750 is awarded at the end of a year’s time only if the client has landed a job.

According to a recent report to a federal court monitor, state officials are evaluating both the ORS and DDD approaches to determine “what aspects of each model work for providers, what challenges exist, and how ongoing efforts of the two agencies can be coordinated.”

Tracey Cunningham and Joseph Murphy

Tracey Cunningham and Joseph Murphy

Joseph Murphy, an administrator at ORS in the Department of Human Services, and Tracey Cunningham, Chief Employment Specialist in the developmental disabilities division at BHDDH, gave status reports on their respective programs at the monthly meeting of the Employment First Task Force Sept. 12.  

Cunningham said that between January and mid-August, the DDD program found jobs for 116 of a total of 425 adults with developmental disabilities who were enrolled. Nine others found jobs that didn’t work out, Cunningham said, and they are looking for better matches.

The program could take on an additional 92 clients, up to a maximum of 517, according to figures provided by Cunningham. However, service providers are having trouble lining up the trained staff to expand their rosters and want to focus instead on doing a good job with the clients they already have, Cunningham said.

Claire Rosenbaum, Adult Services Coordinator for the Sherlock Center on Disabilities at Rhode Island College, said one training course was cancelled recently for lack of enrollment. The Sherlock Center has a contract with the state to provide the needed training tuition-free.

In addition, the “self-directed” families, those who manage services independently for loved ones, are having a difficult time finding properly trained job developers and job coaches, Rosenbaum said. 

Cunningham said about 90 percent of “self-directed” families who seek supported employment services purchase them from private agencies.  But Rosenbaum said families are having difficulty identifying agencies able to help them.

Cunningham said three agencies are accepting clients from “self-directed” families:  Goodwill Industries, Work, Inc., and a new program called Kaleidoscope.

Nicole Kovite Zeitler

Nicole Kovite Zeitler

Nicole Kovite Zeitler, a lawyer for the U.S. Department of Justice who monitors supported employment in conjunction with a 2014 consent decree enforcing the Americans With Disabilities Act (ADA), asked what was driving the providers’ inability to expand.

 Low salaries are the primary reason, said Donna Martin, executive director of the Community Provider Network of Rhode Island, a trade association representing about two thirds of the private agencies providing services in Rhode Island.

She said aging baby boomers also are creating an increased demand for direct care workers. Turnover is high – about 35 percent - and one in six jobs goes vacant in the developmental disability system, she said.

The General Assembly this year enacted the second consecutive raise for direct care workers. (Read related article here.)

But the increase, an estimated 42 cents an hour before taxes, is not expected to make a significant difference in the existing subsistence-level wages. Nor will it be any easier for developmental disability agencies to hire or keep new workers.

Meanwhile, the funding for the DDD supported employment program has been greatly under-utilized, even while the developmental disability service agencies have struggled to hire and train enough workers. (Read related article here.)                                 

The DDD program provides increased allowances for  job-seekers, based on the degree to which they lack independence,  but  most of the expenditures are set-aside for one-time performance bonuses to the agencies when:

  •  A job coach or job developer completes training
  •  A client gets hired
  •  A client remains employed for 90 days
  •  A client remains employed for 180 days.

Agencies receive $810 for each worker who has completed training. The remainder of the bonuses are arranged on a sliding scale, depending on the severity of the client’s disability, with the largest payments resulting from placement and retention milestones for those with the most complex needs.

Excluding any reimbursements for worker training, which were not part of the original design of the DDD program, the average maximum one-time reimbursement was initially projected to be $9,700 for young adults and $15,757 for older adults – those who left high school before 2013. Any updated figures were not immediately available.

The pilot operated by the state Office of Rehabilitation Services (ORS)  works with seven developmental disability service agencies to help a total of 49 clients find jobs. Five have had success so far, Joseph Murphy, program administrator, told task force members.

The ORS program, which receives technical assistance from Salve Regina University in Newport,  is now in the second quarter of the program year, while DDD program is in the third quarter. 

The ORS program considers a successful placement to be a minimum of ten hours a week in competitive, integrated employment in the community, although Murphy said Sept. 14 that it accepts clients no matter how many hours' work they seek. The ORS program offers a $1,000 bonus for job placements that exceed 20 hours a week and last at least six months. In the DDD program, a successful placement may involve fewer than 10 hours' work a week.

Victoria Thomas

Victoria Thomas

The employment goal of the consent decree is an average of 20 hours a week of work at minimum wage or higher, although DOJ lawyer Victoria Thomas said there are no hourly employment requirements in the ADA.

“It just says people with developmental disabilities should have the option of integrated services,” she said.

The consent decree resulted from findings of the DOJ in 2014 that the state’s developmental disability services  over-relied on segregated sheltered workshops paying sub-minimum wages and non-work programs resembling day care.  As part of a system-wide overhaul, the state must support increasing numbers of adults with developmental disabilities in competitive employment in the community through Jan. 1, 2024.

The Employment First Task Force was created by the consent decree to serve as a bridge between state government and the community.

All photos by Anne Peters

This article has been corrected to reflect the fact that the up-front payment to providers in the ORS supported employment program is $1,750, one quarter of the total $7,000 allocation per client. In a clarification, Joseph Murphy, the program administrator, said it accepts clients no matter how many hours a week they seek competitive employment, even though a placement must be for at least ten hours a week to be considered successful for the purposes of the program.

Mixed Reviews on Employment From RI Consent Decree Monitor; Judge to Hear Compliance Status

By Gina Macris

Rhode Island has made “uneven”  progress in finding jobs for adults with developmental disabilities during the first quarter of 2017, according to an independent court monitor who oversees implementation of a 2014 federal consent decree intended to give adults with intellectual challenges more choice over how they live their lives.

The monitor, Charles Moseley, has filed his latest report in advance of a U.S. District Court hearing July 28 on compliance with the decree, which grew out of findings by the U.S. Department of Justice that Rhode relied excessively on  sheltered workshops paying sub-minimum wage and on segregated non-work programs.

Moseley said 62 individuals got jobs between January and March of this year, increasing the total number of placements to 544. That total is 340 more than the number of persons who had jobs 12 months earlier, according to data submitted by the state. Moseley said the number of placements for January through March of 2017 fell below an average of 85 placements per quarter for each of the three previous quarters. 

The first quarter of 2017 coincided with the launch of the state’s new incentive program for private agencies providing job-related services, but Moseley’s report did not make reference to that program. (Read related article.)  Complete employment statistics for April through June are not yet available.

Moseley’s report broke down the statistics according to three categories of adults with developmental disabilities who are protected by the consent decree: those who  had been in segregated sheltered workshops; those who had been in segregated day care facilities, and young adults who are at risk for long-term segregation after they leave high school. The consent decree also covers a fourth category of individuals; high school special education students who are at risk of segregation as adults. But the consent decree does not require the state to help them find jobs while they are still in school.

According to Moseley’s report, among the so-called “day target population”, a total of 262 had jobs on  March 31, an increase of 28 during the first quarter of the year. The total of 262 is more than twice the number the consent decree requires by Jan. 1, 2018. There are a total of 1,541 individuals in this category protected by the consent decree.

In the “sheltered workshop target population,” 9 individuals got jobs between January and March, bringing the total employed since Jan. 1, 2016 to 122. That number represents 81 percent of the consent decree benchmark of 150 placements for former sheltered workshop employees by Jan.1, 2018, according to Moseley’s report. At last count, there were a total of 658 current or former sheltered workshop employees protected by the consent decree.

Moseley said young adults, or members of the “youth exit target population,” gained 25 new job placements between January and March, for a total of 160 placements in that category. The consent decree requires job placements for all young adults the same year they leave high school.  Moseley said that with the current census of the “youth exit target population” at 497, the state had achieved only 32 percent of the number of jobs required by the consent decree for young adults.

Source: RI Division of Developmental Disabilities

Source: RI Division of Developmental Disabilities

 

For the 12-month period ending March 31, the total number of individuals protected by the consent decree grew from 2,962 to 3,621, an increase of 659, which Moseley attributed to the state’s improved data collection.

Moseley has repeatedly emphasized individualized career development planning as an integral part of the job search. Equally important is individualized benefits counseling, which Moseley has said is necessary to allow individuals to make informed choices about whether potential jobs will adversely affect Medicaid and other types of government supports. 

The latest statistics show that about 63 percent of all persons protected by the consent decree have career development plans and about 67 percent of those who are employed have had benefits counseling, according to Moseley.

Friday’s court hearing will be at 10 a.m. in Room 310, the historic library of the federal court building in Kennedy Plaza in Providence.  U.S. District Court Judge John J. McConnell, Jr. will preside.  

Click here to read Moseley's entire report.

DD Supported Employment Program, Scheduled for Court Review, Falls Short of Initial Goals in RI

Source: PCSEP (Person-Centered Supported Employment Program) progress report - RIBHDDH - June 28, 2017

Source: PCSEP (Person-Centered Supported Employment Program) progress report - RIBHDDH - June 28, 2017

By Gina Macris

Rhode Island is struggling to move persons with developmental disabilities into productive jobs as envisioned in a federal consent decree reached with the U.S. Department of Justice three years ago, according to information obtained by Developmental Disability News.

A state report on the first six months’ operation of a pilot program to promote supported employment shows under-utilization of available funds and a job placement rate that falls far short of the state’s own goals.

The report, prepared by the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals, was obtained by Developmental Disability News.

Meanwhile, providers of services to persons with disabilities have told a federal court monitor and lawyers for the U.S. Department of Justice (DOJ) that they operate at a loss for the employment-related services they offer to clients enrolled in the individualized program, according to three sources familiar with the meeting.  

The primary reason is that the program does not pay the full cost of the services. That complaint was first registered when the parameters of the program were disclosed last winter.

In a meeting with the monitor and DOJ lawyers July 10, the providers also said they have inexplicably encountered problems billing for non-work services which are still needed by clients of the supported employment program.

Donna Martin, executive director of the Community Provider Network of Rhode Island, a trade association of developmental disability service agencies, confirmed that providers told the monitor and the DOJ that funds for the non-work services were “frozen.”

In an interview July 18, she said that the problem may be a computer glitch; an unintended consequence of the state’s efforts to track private providers’ billing for the supported employment program.

Martin said that Kerri Zanchi, the director of the Division of Developmental Disabilities at BHDDH, who inherited the administration of the supported employment program when she was appointed in late January, will meet with providers later this week to discuss a solution to the billing problem.

The problems outlined at the July 10 meeting and in the state’s progress report come in advance of the latest hearing in U.S. District Court, scheduled for July 28, as the court continues to track the state’s compliance with a 2014 federal consent decree.

That consent agreement requires the state to move away from over-reliance on sheltered workshops, by helping persons with developmental disabilities participate in integrated, community-based activities. The decree emphasizes jobs paying at least the minimum wage.

The state’s progress report on the supported employment program says there were 82 job placements between January and June 15, falling well below the pace necessary to achieve a self-imposed goal of 396 new jobs by the end of the calendar year. Of 513 client spaces available, 123, or 24 percent, are vacant, according to the report.

The report indicates that the program has spent far below the $6.8 million authorized by the General Assembly for the fiscal year that ended June 30, even taking into account the fact that the program wasn’t ready to accept clients until January, mid-way through the fiscal year.

The report says the state has made a total of $122,313 in performance payments for the training of job coaches, job placements, and job retention benchmarks. At the current rate, the report says the program will have paid out $390,000 in incentives by the end of the calendar year, far short of a total of $1.4 million set aside for that purpose during the first 12 months of operation.  

The report does not say how much of the $6.8 million has been set aside for providing job-related services, or how much providers have billed for these services, albeit at the same rates they would have been paid if the clients had not been enrolled in the special program.

Martin said that, as she understands it, there is usually flexibility between work and non-work categories in funding allocations for individual clients eligible for daytime services, so that an agency that provides more supports in one category during a particular month may draw on the funding for the other category as long as the billing does not exceed the total allocation for the quarter.

However, providers told the federal court’s monitor, Charles Moseley, and the DOJ that for clients of the supported employment program, there is no flexibility in the individual funding authorizations. In other words, if a client runs out of funds designated for non-work activities, the provider may not bill against the supported employment category. That money remains on the client’s account, but it is inaccessible, Martin said, explaining her understanding of the billing problem.

The DOJ, the monitor, and BHDDH all declined comment. A BHDDH spokeswoman said that information the department is compiling for the July 28 federal court hearing has not been finalized and could not be shared in advance with the media. Expenditures for the fiscal year that ended June 30 also have not been finalized, the spokeswoman said.

The federal officials also were preparing for the upcoming hearing when they hosted the July 10 meeting with providers. A four-page agenda prepared for that meeting, obtained by Developmental Disability News, asks providers to weigh in about all aspects of the program, including funding methods, as well as integrated non-work services.

The agenda indicates that the federal officials are particularly concerned that young adults with developmental disabilities – a group prioritized by the consent decree – are under-represented among 388 clients of the supported employment program.

Of 388 adults with developmental disabilities enrolled in the pilot employment program, only 87, or 22 percent, are young adults who have left high school since Jan. 1, 2013, according to the agenda.

At the same time, those 87 individuals represent less than 17 percent of the young adult category protected by the consent decree - 526 persons at last count. In all, the decree covers more than 3400 teenagers and adults of all ages, with the number updated quarterly.

Of three dozen private service providers operating in the state, 22 signed up for the supported employment program. Three of the 22 agencies have made no placements and another 7 have each made one placement from January through June 15. Two agencies have made 31 of the 87 job placements described in the report. The agencies are not identified by name but by letters of the alphabet.

The supported employment program offers bonuses to service providers who achieve goals in staff training, job placement and job retention, but it does not address an underlying problem of the state's low reimbursement rates to providers. The agencies, in turn,  pay their employees what are considered  depressed wages – an average of $11.14 an hour. These low wages have resulted in high rates of turnover and job vacancy, as well as high overtime costs to meet health and safety staffing requirements, and perpetual training of new hires.

While the supported employment program pays stipends once agency workers have completed a certificate program for job developers and job coaches, it does not pay the up-front costs of hiring and basic training for these workers, or other expenses associated with an agency’s capacity to find jobs for its clients.

Martin said that at the outset, providers hoped that the state would invest half the $6.8 million allocation for supported employment in start-up costs to help agencies expand their services, but instead the state put all the emphasis on performance payments.

Supported employment and related issues are likely to come up at the hearing before Judge John J. McConnell, Jr. on July 28 at 10 a.m.

RI Consent Decree Task Force Wants Feds To Look At Accuracy Of Assessments Used In DD Funding

By Gina Macris

This article has been updated.*

Seven months after Rhode Island state social workers were retrained to better administer a questionnaire used to determine Medicaid funding for adults with developmental disabilities, signs have emerged that not all the interviewers may be conforming to the highly scripted assessment process.

On June 13, the chairman of the Employment First Task Force said the group needs more comprehensive information about any continuing problems with the assessment, the Supports Intensity Scale (SIS). He said he will make a request in writing to the U.S. Department of Justice and a federal court monitor, asking them to look into the situation.

Rhode Island is in the fourth year of implementation of a 2014 federal consent decree asserting the rights of adults with developmental disabilities under provisions of the Americans With Disabilities Act to obtain the services they need to secure jobs and enjoy non-work opportunities in the community.

The consent decree is “very clear” on those rights, said the federal court monitor, Charles Moseley, who listened into the meeting in a conference call.

Moseley said he was “disturbed” to hear an account of a SIS interviewer who said that because a young man was employed, even part time, he could not have the extensive behavioral and medical supports that family members and the service providers said the man needed. In fact, without those supports, the young man could not keep his job.  The task force member who addressed Moseley by telephone in the meeting later asked not to be identified.

Another task force member, Claire Rosenbaum, Adult Supports Coordinator at the Sherlock Center on Disabilities at Rhode Island College, recalled two SIS interviews she has attended since the social workers administering them were re-trained. One was done very well. In the other, the SIS supervisor corrected the interviewer twice.

For example, an interviewer may ask whether certain behavioral problems occur, or whether they have occurred in the last year. But Rosenbaum indicated that the proper phrasing for the SIS is to ask what supports are necessary to prevent those behavioral problems.

The latter approach acknowledges the impact of existing supports in helping adults with developmental disabilities enjoy a better quality of life, something parents and providers had routinely complained was missing from the SIS before the interviewers were retrained.

*(On June 15, Claire Rosenbaum said her comments were not intended as criticism of the SIS interviewers but to make the point that the retraining of interviewers was followed up with supervisory coaching as reinforcement. The two SIS interviews she attended were appropriately administered, she said.  She said her comments, while intended to be positive, did not preclude the possibility that an interviewer or two may not be immediately absorbing the training and coaching provided).

SIS Has History of Controversy in RI

The way Rhode Island uses the SIS to establish funding has been criticized both by the monitor and the DOJ since 2014, when Justice Department lawyers found that there was at least the appearance of a conflict of interest because the agency which administers the questionnaire also allocates individual funding.

Since then, the fiscal arm of the agency which administers the SIS, the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals, (BHDDH) has been transferred to the Executive Office of Health and Human Services (EOHHS).

But Kevin Nerney, the Task Force chairman, said that to the average Rhode Islander, “the state is the state.”  Task Force members floated the idea of having a non-state entity administer the SIS assessment.  

The American Association of Intellectual and Developmental Disabilities, (AAIDD), which developed the SIS, has urged states to avoid even the appearance of a conflict by making a clear separation, or firewall, between the actual interview and the allocation process.  

A U.S. District Court order issued in May, 2016, required the state to change its policy to specify that the  scores on the SIS will be “consistent with individuals’ support needs, separate and apart from resource allocation considerations.” 

Moseley, the monitor, in reporting to Judge John J. McConnell, Jr., earlier this year, the monitor, Moseley, took that idea a step further. In conjunction with bringing greater individualization to supports for adults with developmental disabilities, he has ordered the state to give him quarterly progress reports as it works toward changing its approach to determining needs and funding.  Instead of translating SIS scores into one of five funding levels, as it does now, the state should use the interview results to first draw up individual programs of support. Only then should it apply funding, according to the model envisioned by the monitor.

Meanwhile, Nerney, the Task Force chairman, said outside the Tuesday meeting that the group has repeatedly asked BHDDH over the past two years – without success - for the number of appeals filed by providers or family members contesting funding levels resulting from the SIS.

While that number has not been made public, state Sen. Louis DiPalma, D-Middletown, disclosed in a Senate Finance Committee hearing in April that the appeals generate a total of $21.5 million to $22 million a year in supplemental payments above and beyond the levels determined by the SIS. That amounts to about 10 percent of all payments made to the private agencies that provide most of the services.

Ten percent is too high, DiPalma said, urging BHDDH officials to rework the way they use the SIS.

Consent Decree Allows Exceptions to 'Employment First'

The Task Force also discussed various approaches to developing a variance process under provisions of the consent decree for individuals with developmental disabilities who can’t work or don’t want to work because they fear the challenges of the regular employment.  Language for one or more kinds of variances or exceptions is being drafted, task members reported.

In conjunction with an interim settlement between the City of Providence and the DOJ in 2013 and the subsequent statewide agreement in 2014, the state has adopted an “Employment First” policy which assumes that adults with developmental disabilities can work at regular jobs, with support.

This policy generally has been welcomed by young people, particularly those who have had internships as part of their special education programs in high school and looked forward to working as adults. 

But that reaction has not been universal.  After the policy was adopted in 2013, BHDDH abruptly closed most sheltered workshops without having any plan in place to gradually acclimate those clients to community-based services. The move generated a wave of anger from families whose loved ones had enjoyed the social aspect of the workshops and took pride in their paychecks, even if they were a fraction of the minimum wage. 

Since Governor Gina Raimondo beefed up the state’s response to the consent decree in 2016, various high-ranking state officials have made public assurances that no one will be forced to work if they don’t want to or are unable, contrary to what some families say they have heard from rank-and-file employees in the developmental disability system. 

In a task force discussion on Tuesday of what a variance to the “Employment First” policy might look like. Claire Rosenbaum, Adult Services Coordinator at the Sherlock Center on Disabilities at Rhode Island College, said she understands that some families are turning to segregated adult day care programs for their loved ones that are outside the system licensed by BHDDH. 

These adult programs, licensed by the Department of Health, may take private payments or federal Medicaid funding, according to anecdotal remarks by various task force members.

Moseley, the monitor, said that if Medicaid funding is involved, federal regulations emphasizing community-based services, similar to those of the consent decree, would apply. Both the consent decree and Medicaid regulations governing Home and Community Based Services (HCBS) derive their authority from the 1999 Olmstead decision of the U.S. Supreme Court. The High Court said that individuals with disabilities must be offered services in the least restrictive environment that is therapeutically appropriate, and that environment is presumed to be the community.

Kiernan O’Donnell, co-president of the Rhode Island Association of People Supporting Employment First, said that if families had more information, they wouldn’t be going to segregated programs.

The Task Force, meanwhile, discussed the importance of planning around the individual needs of a particular person. While the principal goal may be employment for one person, it may be health for another, said Deb Kney, director of Advocates in Action.

Planning is a “process. It’s not a form” for checking boxes, she said. Others agreed.

The Employment First Task Force was created by the 2014 Consent Decree to serve as a bridge between the community and state government, with membership drawn from community agencies serving adults and teenagers with developmental disabilities, those who receive services and advocate for themselves, and families. Nerney, the chairman, represents the Rhode Island Developmental Disabilities Council.

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"

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.