RI Faces Possible Fines For DD Noncompliance

Federal Building, Providence, RI

By Gina Macris

For a second time, the state of Rhode Island is facing multi-million dollar fines for non-compliance with a 2014 consent decree which seeks to enforce the rights of adults with developmental disabilities to live regular lives in their communities

The state was in the same position about this time last year, when the U.S. Department of Justice (DOJ) had asked Chief Judge John J. McConnell, Jr. of the U.S. District Court to find Rhode Island in contempt of court and impose penalties of up to $1.5 million a month.

Instead, the state produced a multi-faceted “action plan” approved by the Court last October to meet the requirements of the consent decree by the time its term expires on June 30, 2024.

But now, an independent court monitor says the state has not understood the urgency of the situation and has failed to meet the expectations of the court-ordered action plan, particularly in recruiting a sufficient number of direct care workers needed to implement a community-based system of services.

McConnell has scheduled a private conference with lawyers in the case for Oct. 11.

The monitor, A. Anthony Antosh, said a filing Sept. 1 that the judge will consider levying fines retroactive to Sept. 1 unless the state can convince him, in yet another plan, that it can step up recruitment to meet compliance deadlines. That three-page report amended a much lengthier analysis Antosh delivered earlier in the week.

As each month goes by, compliance becomes more difficult.

By July 1, 2023, ten months from now, the state must pull together an adequate workforce, sufficient funding, and new individualized community-oriented services system-wide to have a shot at full compliance by June 30, 2024, Antosh said.

The new system will have to be fully operational for at least a year before the DOJ agrees to end federal oversight, according to DOJ statements in past consent decree hearings.

With less than two years remaining in the decade-long term of the agreement, the state’s capacity to fully implement consent decree requirements “continues to be limited,” Antosh said in a report to the Court Aug. 29.

Antosh said the state has “failed to realize the urgency and scope of effort needed” to address a shortage of 1081 direct care workers – roughly a third of the workforce that would be necessary to implement a community-based system of services.

Antosh’s analysis focused on remedial steps Judge McConnell ordered in the state’s 2021 action plan to push the state along in reforming the disabilities system after it had failed to meet earlier goals.

In the plan, filed last Oct. 19, the state agreed to hire an outside consultant to “coordinate and implement an intensive statewide recruitment initiative” to expand the ranks of frontline caregivers.

Six months passed without progress in selecting a recruitment consultant, Antosh said. On May 3, Judge McConnell issued a court order spelling out a numerous recruitment-related activities that were to take place over the summer and deadlines for pulling in potential new-hires.

While the state has begun in recent weeks to implement several activities, Antosh said that as of mid-August, “the Court has not received a comprehensive plan that addresses all the required components” of the recruitment and retention initiative.

In the supplementary report filed Sept. 1, Antosh said he had spoken to more than 50 people involved in workforce recruitment and found consistent criticism about

• long delays in implementation of the plan

• a lack of clarity about its intent and outcomes

• a lack of connectivity between various activities involved in the overall plan

Antosh noted that the state, in its request for proposals to hire a consultant to speed the hiring process, did not require the successful bidder to supplement the recruitment efforts of the private service agencies or families who self-direct individual service programs.

The state’s $326,500 contract with the successful bidder, Sage Squirrel Consulting, specifies that it will “develop and establish statewide mechanisms for ongoing recruitment, onboarding, training and retention of Direct Support Professionals (DSPs)” for the system serving adults with intellectual and developmental disabilities.

Antosh, in his supplemental report Sept. 1, reiterated that the outside consultant hired by the state must become involved in recruitment and must coordinate with private service provider and families who seek workers for individually-designed service programs.

He spelled out detailed requirements of a revised recruitment plan which he expects the state to finalize by Oct. 7, four days before the lawyers in the case meet with the judge.

Provider agencies working on their own to close the gap of 1081 workers needed to implement the consent decree have made little recruitment progress on their own, Antosh concluded in his Aug. 29 report.

Between July and December, 2021, 32 agencies responding to a survey added a total of 131 people to their combined workforce. More recent figures are not yet available.

All together, the agencies still reported they had 618 vacancies, including 390 full-time positions and 228 part-time posts.

Of 350 front-line supervisors, 160 worked overtime to cover direct care shifts that otherwise would be unstaffed.

Antosh devoted attention to the staff woes of families who directed their own program of services for a loved one with developmental disabilities. Since 2017, their number has doubled, from 489 to 976. And this sector is expected to continue growing as more teenagers move into the adult service system in the future.

One factor in the growth of self-direction is that provider agencies are serving fewer numbers of people than they did before the COVID-19 pandemic. About two thirds of service providers licensed by the state reported turning away clients or declining referrals during the last half of 2021, according to Antosh’s report.

In two meetings, Antosh said, families “described their fear of imminent crisis if one or two of their primary staff depart.”

A total of 178 families responding to a survey reported having 416 support staff and 213 job openings, for a vacancy rate of almost 34 percent.

The families also had concerns about an inability to provide time for staff to participate in professional development and the lack of funding for medical or dental benefits – an important tool in recruiting and retaining workers. Without agency-level overhead, they are able to pay their workers an average of $19.94, or nearly $4 an hour more than the average starting pay at a licensed provider organization.

Judge Will Settle Argument Over Witnesses In Consent Decree Case

By Gina Macris

Sometime in September, the state of Rhode Island drafted a settlement agreement, aimed at avoiding upcoming federal court contempt proceedings, for continuing violations of a 2014 civil rights consent decree case affecting adults with developmental disabilities.

But as the state’s lawyers were planning to show the proposal to the U.S. Department of Justice (DOJ), pre-trial legal sparring moved front and center, and the chances for any settlement to resolve the contempt charges remain unknown.

In an email chain made public in a court filing, the state’s lead lawyer told a counterpart at the DOJ on Sept. 30 that his team hoped to confer with DOJ lawyers in the following days about the proposed settlement.

Those emails also showed the two sides sparred over pre-trial procedures, coming to an impasse over the deposition of witnesses in the contempt hearing, scheduled to begin Oct. 18. A longstanding lack of funding and staff to carry out compliance with a 2014 consent decree would be a be a key issue in the contempt hearing.

The DOJ asked Chief Judge John J. McConnell, Jr. of the U.S. District Court to intervene, and compel the state to make available a total of 15 witnesses, including the House and Senate fiscal advisors, in time for the DOJ to depose all of them in accordance with a pretrial deadline already established in a court order.

McConnell has scheduled a teleconference with the lawyers for 4 pm on October 7.

In asking McConnell to intervene, the DOJ included a Sept. 30 chain of emails between DOJ lawyer Victoria Thomas and two state lawyers, Marc DeSisto and Kathleen Hilton.

In the emails, DeSisto and Hilton pushed back the start of depositions, in the process postponing a deposition that had already been scheduled with the state’s chief auditor in the Office of Management and Budget.

In addition, DeSisto and Hilton said they could not make the House and Senate Fiscal Advisors available for deposition at all. Sharon Ferland holds the House post and Stephen Whitney advises the Senate.

Hilton wrote: “Without more information as to the reasons you are seeking to call Sharon and Stephen as witnesses, we cannot make a determination on whether we could agree to make them available. There very well may be privileges that need to be preserved by way of a motion for protective order. Additionally, we do not have the authority to accept a subpoena on their behalf.”

DOJ’s Thomas replied: “We are seeking the testimony of Sharon and Stephen based on the Court Monitor’s opinion that they have valuable information relevant to the funding provision of the Consent Decree. We have now exhausted our good faith efforts to resolve this dispute and will be filing a motion to compel shortly.”

Earlier in the email chain, DeSisto had mentioned the proposed settlement:

“As we discussed in last evening's phone call,” he wrote to Thomas, “it is my hope that in the next few days we can confer regarding the terms of settlement. We are waiting for some feedback from Tony (A. Anthony Antosh, the independent court monitor) in this regard. Once we receive his input, we would like to have a settlement conference with you, maybe as early as tomorrow.”

Thomas replied:

“We are eager to see the State's written settlement proposal and to conference with you tomorrow. That said, while we remain hopeful that a settlement may potentially resolve our contempt motion, we must preserve our litigation rights.” Thomas continued to press for assurances on the depositions.

In its contempt motion, The DOJ has stated that, if necessary, it is prepared to present evidence that the state “failed even to ask its Legislature for a sufficient appropriation” and that it “failed to make efficient use even of the resources it had – for example, by failing to modify State rules and incentives that favor providers of less integrated services over providers of more integrated services.”

The DOJ has proposed an escalating scale of fines, from $500,000 on the first day of each of the first two months to $50,000 a day beginning on the 70th day. At that rate, the fines would add up to about $1.5 million a month.

DOJ, RI Spar Over Contempt In Olmstead Case

Federal Courthouse in Providence

By Gina Macris

The state of Rhode Island told a judge it cannot be held in contempt of a 2014 civil rights consent decree seeking to integrate adults with developmental disabilities in their communities because of circumstances beyond the state’s control.

But the U.S. Department of Justice (DOJ) says that the state has only itself to blame for its failure to comply.

The state’s “persistent choices to under-fund the system have created a dramatic provider shortage” that has left the target population isolated, the DOJ said in a counter-argument submitted Friday, Sept. 10, to the U.S. District Court.

The “refusal to adequately fund the Consent Decree is precisely the kind of self-imposed inability to comply” that undermines the state’s arguments in its defense, the DOJ said.

The decree stems from a 2014 finding by the DOJ that the state violated the Americans With Disabilities Act by relying too much on sheltered workshops paying sub-minimum wages and isolated day care centers, which kept people with disabilities out of mainstream society. The Olmstead decision of the U.S. Supreme Court has re-affirmed the rights of people with disabilities to receive support in their communities to give them a chance to live regular lives.

The DOJ further cites warnings of an independent court monitor a year ago that the state will be unable to comply with the consent decree by 2024 unless it came up with a multi-year plan to overhaul its developmental disabilities system, which for a decade has encouraged segregated care over integrated services. Such a plan has not been forthcoming.

The state’s lawyers, Marc DeSisto and Kathleen Hilton, submitted arguments Sept. 1 in response to a DOJ motion two weeks earlier that asked the Chief Judge of the U.S. District Court to find the state in contempt of the consent decree and impose fines ranging up to $1.5 million per month. Chief Judge John J. McConnell, Jr. has scheduled a hearing the week of Oct. 18 through Oct. 22.

The state’s lawyers maintained the state could not meet benchmarks for integrated employment and other criteria because of the COVID-19 pandemic, as well as resistance by adults with developmental disabilities themselves to work and non-work activities in the community.

But in its reply Sept. 10, the DOJ said the state’s characterization of the population “paints an inaccurate and offensive picture of people with developmental disabilities” and “reflects a profound misunderstanding of the nature, purpose, and obligations of the Consent Decree.”

DeSisto and Hilton, meanwhile, also argued that numerical targets for employment of adults with disabilities were not required by the consent decree, even though, as the DOJ said, documents show that state officials have admitted the opposite in numerous statements to the court since 2014, in writing or in person..

The state’s lawyers also maintained the state cannot be held in contempt until after the agreement expires on June 30, 2024 – an interpretation the DOJ said is unheard of in litigation involving system-wide reform.

In picking apart the state’s position over 28 pages, the DOJ said the state is urging the court “to adopt an interpretation of the consent decree that is “at odds with the decree’s text and purpose,” the DOJ said.

The state maintained the consent decree “imposed what could only be described as a cultural shock on the targeted community. After years of receiving services in “non-community” settings, “they are being told that their lifestyle must change,” the state’s lawyers said.

The DOJ disagreed. Rather than being told what they must do, the DOJ said, those eligible for services and their families have the right to make informed choices after receiving education and support about what working and enjoying leisure activities in the community might mean for them.

The state’s own data show that it “dramatically overstates” the resistance to integrated services, with 80 of 1,877 persons, or 4 percent, opting out of integrated services through a formal variance process, the DOJ said. And it cited a report from a court monitor in 2016 who had said he found “strong broad-based acceptance of the goals and desired outcomes of the consent decree.”

Similarly, the DOJ lawyers rejected the state’s argument that the COVID-19 pandemic prevented compliance with the annual employment targets in the consent decree. The pace of new job placements had slowed significantly more than a year before the onset of COVID-19, the DOJ said.

While the pandemic did make compliance more challenging, the state made “minimal efforts” to serve the consent decree population during the pandemic, the DOJ’s civil rights division argued.

“Given the availability of enhanced federal matching funds for providing integrated Medicaid services like those the Consent Decree requires, the State has the opportunity to increase funding for integrated employment services, provide the full amount of integrated day services to each target population member, and enhance wages to attract the required number of service providers,” the DOJ said. Its memorandum is signed by Rebecca B. Bond, chief of the DOJ’s civil rights division, as well as trial attorneys expected to litigate the case in October.

The state did earmark $39.7 million in federal-state Medicaid money to raise the wages of workers and their supervisors by $2 to $3 an hour in the current budget, a roughly 15 percent increase, but only at the conclusion of court-ordered negotiations between state officials and providers.

DeSisto and Hilton, the state’s lawyers, also said the state is finalizing the language in a request for outside proposals “for evaluation and implementation of new rate and payment options for (the) Developmental Disabilities Services System.” The preparation for the request for proposals indicates that BHDDH plans to go out to bid through the state purchasing system, which can take several months.

The state last conducted a rate review in 2010 and 2011, but the General Assembly did not follow the recommendations of the consultant, Burns & Associates. Instead, it set dozens of reimbursement rates for private providers roughly 17 to 19 percent lower than Burns & Associates recommended, with the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) saying that it still expected providers to maintain the same level of service.

In November 2018, a principal in Burns & Associates, Mark Podrazik, testified before a special legislative commission that that a rate review was already overdue. Rates should be reviewed every five years, he said.

A few months later, BHDDH hired NESCSO, the nonprofit New England States Consortium Systems Organization, to analyze Rhode Island’s developmental disabilities system from top to bottom.

Although the NESCSO contract called for a rate review and analysis of alternatives to the state’s fee-for-service reimbursement system, NESCSO was asked to present options for change but to make no recommendations.

The BHDDH director at the time, Rebecca Boss, said the department wanted to expand its analytical capability and make its own choices going forward.

The 18-month contract, which cost $1.1 million, produced a final report and supplementary technical materials which, among many other things, said the provider system was significantly underfunded. Since the report was completed July 1, 2020, BHDDH has remained silent on its findings, and has not exercised options for renewal of NESCSOs services.

In their memorandum, the state’s lawyers said that “the intention of the rate review process is to strengthen the I/DD system and services provided to individuals, as well as to address provider capacity to deliver those same services. Thus, the State can and will at hearing clearly demonstrate that it has been ‘performing its obligations’ under the various sections of the Consent Decree.”

The DOJ has scoffed at that notion. The DOJ said in its original filing in August that it is prepared to show the “State failed even to ask its Legislature for a sufficient appropriation, and that the State failed to make efficient use even of the resources it had – for example, by failing to modify State rules and incentives that favor providers of less integrated services over providers of more integrated services.

DOJ Seeks Fines Up To $50K Daily For Rhode Island’s DD Consent Decree Noncompliance

By Gina Macris

The US. Department of Justice has proposed fines up to $1.5 million a month against the state of Rhode Island for failing to comply with a civil rights consent decree protecting adults with developmental disabilities during the last seven years.

The proposed fines are part of a preliminary filing in connection with a contempt hearing scheduled for mid-October by Chief Judge John J. McConnell of the U.S. District Court.

“The United States has sought for several years to work with the State regarding its noncompliance, to no avail,” said the DOJ lawyers.

In a memorandum to McConnell, the DOJ said that the state has fallen far short of numerical targets for providing services for integrating adults with developmental disabilities in their communities, both for employment and non-work activities.

Nor has the state kept its promise to provide adequate funding to maintain the number of agencies and workers needed to provide these services, the DOJ said. Then-governor Lincoln Chafee signed the consent decree April 8, 2014.

If necessary, the DOJ said, it will present evidence in October that state “failed even to ask its Legislature for a sufficient appropriation” and that it “failed to make efficient use even of the resources it had – for example, by failing to modify State rules and incentives that favor providers of less integrated services over providers of more integrated services.”

Those “rules and incentives” allude to Project Sustainability, a ten-year old fee-for-service reimbursement model that still allocates 40 percent of a recipient’s service hours to segregated, center-based care.

The DOJ said the court should “impose a reasonable fine on the state to incentivize it to rapidly come back into compliance with the Consent Decree, and to compensate for the state’s current underfunding of services.”

The proposed schedule of fines:

• $500,000 on the first day of the month for the first two months after a judicial finding of contempt.

• $50,000 a day, or about $1.5 million a month, beginning on the 70th day after a contempt order. The money would be deposited in a special fund to be used for consent decree compliance. The state should be prohibited from paying the fines out of any funding that otherwise would benefit Rhode Islanders with disabilities, the DOJ said.

McConnell has cleared the week of Oct. 18 through Oct. 22 to hear evidence in the contempt proceedings. The consent decree draws its authority from the Integration Mandate of the Americans With Disabilities Act, as reinforced by the Olmstead decision of the U.S. Supreme Court.

To help remedy any contempt finding and lessen fines, the state could increase the number of supported employment placements and expand the service hours of integrated daytime activities in accordance with the consent decree, the DOJ said.

In a separate step, the DOJ asked McConnell to order the state to prepare a plan for funding and complying with the consent decree before its term ends June 30, 2024. Such a document could help remedy the contempt and, with the court’s approval, could be incorporated in the existing decree.

By its own account, the state has missed its employment targets by more than a third for people in two categories of the consent decree population. They are the “Youth Exit” group, adults who left high school between 2013 and 2016, and the “Sheltered Workshop” group, those who once worked for subminimum wages in sheltered workshops, which were eliminated in 2018.

The chart below, from the state’s report to the court for the quarter ending March 31, shows employment in relation to the latest consent decree targets for a 12-month period. While part of the slow growth during 2020 might be attributed to the COVID-19 pandemic, the state had been falling further behind in previous years.

In another category, only 55 percent of adults are participating in integrated non-work activities in the community for slightly less than ten hours a week, on average, and only a fraction have a combined schedule of employment and other activities in the community filling more than 20 hours a week, according to the latest report of an independent court monitor, cited by the DOJ. In the consent decree, the state agreed to fund services for a total of 40 hours a week.

The DOJ also cited the monitor’s assessment that the state lacks the workers and the funding necessary to provide the services to comply with the consent decree.

Consultants from Approach Group, a Boston-based firm, have calculated the worker shortage at more than a 1000 of the 2845 direct care staff it said are needed to support Rhode Islanders with developmental disabilities in the community.

Separately, Approach Group and three other consultancy firms participated in 18-month, $1.1 million analysis of the developmental disabilities system commissioned by the state that found fiscal instability in the private provider system, which the state relies on for compliance with the consent decree.

The organizer of the four firms, the New England States Consortium Systems Organization (NESCSO), submitted its final report July 1, 2020, to the state Department of Behavioral Health, Developmental Disabilities and Hospitals (BHDDH), laying out various options for alternatives to the state’s fee-for-service reimbursement system.

But the state’s subsequent budget deliberations did not address the NESCSO report or the needs it identified.

Instead, it appeared that BHDDH and Governor Dan McKee’s initial budget proposal responded to a directive from the Office of Management and Budget for a 15 percent budget reduction across the board.

In the end, Judge McConnell ordered state officials and providers to negotiate a wage hike in an effort to attract more workers.

As a result, the General Assembly set aside $39.7 million in the current budget for raises of $2 to $3 an hour for front-line workers and their supervisors, effective July 1. McConnell also has ordered that entry-level wages climb to $20 by 2024 to make Rhode Island competitive with neighboring states in what is a nationwide shortage of caregivers.

While the state is facing the prospect of hefty fines beginning as soon as November, BHDDH is seeking further study of the needs of adults with developmental disabilities.

Despite NESCSO’s detailed analysis and presentation of options for systems change, BHDDH reported to the court in July that “efforts are underway to draft an RFP (request for proposals) for a Systems Rate Review.

“The focus of this Rate Review will be to take an in-depth look at how services are funded in the Adult DD System to determine if the funding is adequate; if the appropriate services are being funded; and to look at new services categories,” the state’s report to McConnell said.

To read the DOJ’s proposed contempt order, click here.

To read the DOJ’s motion for contempt, click here.

To read the DOJ’s arguments for contempt, click here.

For charts supporting the DOJ’s arguments, click here.

Despite Missed Deadlines, Consent Decree Monitor Says Rhode Island Moving in the Right Direction

By Gina Macris

Rhode Island has not met all the deadlines so far in shifting toward integrated, community-based services for adults with developmental disabilities as required in a 2014 federal consent decree, according to the independent court monitor in the case.

But because the state has taken important steps in the right direction in the last few months, the monitor, Charles Moseley, says he believes it is appropriate to delay evaluating the state’s performance on the deadlines.

Even one missed deadline gives Moseley the option of asking U.S. District Court Judge John J. McConnell, Jr. to conduct a show cause hearing as to why the state should not be held in contempt, according to an order McConnell issued in May.

The order says that the state must comply with every deadline contained in it and in the consent decree from May 18 forward or face possible contempt proceedings and fines. The consent decree contains deadlines running until 2024.

McConnell’s highly prescriptive order came after the state made little progress in complying with the consent decree in the two years since it had been put into effect. The judicial order lit a fire under a team of state administrators led by Jennifer Wood, Deputy Secretary of Health and Human Services.

Moseley submitted his latest assessment to McConnell Sept. 9, in anticipation of a status conference on the case Sept. 16. Typically, lawyers for the U.S. Department of Justice also submit statements to the judge before a hearing, but any submissions from the DOJ have not yet surfaced in the case file.

Moseley, meanwhile, said in his report that the state missed job placement deadlines.  The most recent was a July 1 deadline for finding employment for all young adults with developmental disabilities who left high school during the 2015-2016 academic year. That class is estimated at a minimum of 74 individuals, according to the Rhode Island Department of Education (RIDE). Many of them would be seeking part-time jobs.  

Eligibility specialists at the state Division of Disabilities have been working intensely to try to eliminate a backlog of applications from more than 200 individuals – most of them young adults – who seek developmental disability services.

In his report, Moseley said the state “is implementing substantive changes across the array of day and employment services furnished to individuals with I/DD (intellectual or developmental disabilities).”

He said continued refinements are needed in the data system that enables him and the DOJ to track compliance, and additional policies and practices must be implemented to expand the availability of high quality integrated and individualized day services.

“While challenges remain,” he said, “the foundational steps taken by the state to address key areas related to funding, administrative oversight, training and documentation” are moving Rhode Island “on a path toward achieving the requirements of the consent decree.”

Among the steps forward, Moseley cited the General Assembly’s approval of slightly more than $11 million in added revenue to increase salaries to underpaid direct service workers and implement performance-based contracts with financial incentives for private providers who help their clients find jobs.  

With that funding, the state has agreed to raise pay for direct service workers and job coaches to a minimum of $11.55 an hour, an average of 3.1 percent, Moseley said. The workers are still waiting for that increase to kick in. Wood, the Deputy Secretary of Health and Human Services, has promised the pay increase, retroactive to July 1, would be processed by Oct. 1.

Moseley said the pay raise plan submitted to him by the state needs to be more specific to ensure that the added funding will be used to “increase salaries, benefits, training and supervision”  as required by McConnell’s May 18 order.                                                                                                                                                                                                         

Summarizing what he describes as other“substantive efforts” to comply with the consent decree, Moseley cited the development of performance-based contracts intended to give providers incentives to help clients find and retain jobs, as well as training for professionals and parents in career development planning that will guide individuals’ job searches.

He said funding for start-up costs – a total of $800,000 – has been distributed to nine private service providerswhich are planning to shift from segregated to community-based programs, and the Sherlock Center on Disabilities at Rhode Island College is working closely with private service agencies  to help them make that change.

In addition, Moseley said, the state has provided heightened technical assistance and hired key staff, including an employment specialist and a program improvement officer, to beef up the leadership at the state Division of Disabilities.

Click here to read the monitor's report. 

Click here to read related article

RI Governor's New Request for More DD Funding To Go Before House Finance Committee Thursday

By Gina Macris

Rhode Island Governor Gina Raimondo has proposed adding nearly $16.9 million in state and federal revenue funds during the next fiscal year to shore up the state’s developmental disability system, which is under a federal court order to expand participation of adults with intellectual challenges in work and leisure activities in their communities to comply with the Americans With Disabilities Act (ADA). 

The addition of these funds, in four disability-related categories, will be heard by the House Finance Committee May 26, along with dozens of other proposed amendments Raimondo submitted in light of positive revenue estimates made a few weeks ago by state fiscal analysts. 

The new revenue reflects a change in the Governor’s approach to budgeting for developmental disability reforms, which originally depended on cost-shifting within the Division of Disabilities in the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH).

The disability-related amendments are:

•  An additional $4 million - about equally divided between state and federal funds – to raise the wages of some 4,000 direct care workers for private agencies that provide most of the services to adults with developmental disabilities. The amendment would raise the total allocation for worker raises from $5 million to $9 million.

• A $10 million increase in reimbursements to private providers, including $5 million in additional state revenue, to restore most of the cuts in housing costs made in the Governor’s original budget. That proposal projected 500 adults with developmental disabilities would move from group homes to shared living arrangements with individual families by June 30, 2017, although those estimates were later lowered to 300.  A total of 21 individuals have moved during the current fiscal year, according to the latest figures released by BHDDH. The added revenue will enable BHDDH to take a “more appropriate, more deliberative approach to transition individuals from group homes to shared living arrangements” in the future, according to Michael Raia, a spokesman for the Executive Office of Health and Human Services.

• A total of $170,000 in state and federal funding for an ombudsman who would protect the rights of adults with developmental disabilities. Legislation has been introduced in both the House and Senate to define the office and its duties, in response to the death of a resident of a state-run group home in February.

• Restoration of $4.4 million in state and federal funds used to pay for professional services like physical therapy in day centers, In February, the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) sought to shift the entire $2.2 million to Medicaid managed care organizations, but families complained that services had in fact been denied. The action was rescinded in March.

One of many provisions of a U.S. District Court order issued by Judge John J. McConnell, Jr. on May 18 is that “the State will appropriate the additional money contained in the Governor’s budget for fiscal year 2017 in order to fund compliance with the Consent Decree.” 

Any violation of that or any other requirement in the 21-point court order would allow the U.S. Department of Justice or the independent court monitor in the case to ask the judge for a contempt hearing. If the state is found in contempt, it will be fined a minimum of $5,000 a day for the duration of the violation, up to $1 million a year. 

In a telephone interview May 25, BHDDH director Maria Montanaro emphasized the need for the total $9 million Governor Raimondo has earmarked for wage hikes for direct care staff in the private service system, in addition to the other adjustments.  

Part of what the court wants is a redesign of reimbursement rates, which is more complicated than only raising wages, Montanaro said. The changes in reimbursement that the judge wants, however, can’t be accomplished without paying the workers more, she said. 

Raimondo’s budget originally envisioned an increase of $5 million in state and federal funds to pay for a 45-cent hourly wage increase for a workforce now making an average of roughly $11.50 an hour, according to testimony in recent House and Senate committee hearings. 

Montanaro could not say exactly how the additional $4 million in federal and state funds would further affect wages, but it would allow BHDDH management and agency representatives to discuss factors like the salaries of supervisors of direct care staff and the cost of employer taxes and benefits, she said. Those discussions would be held after the budget is adopted, she said. 

 Currently, private agencies are not fully reimbursed for those employer costs, spokesmen for the service providers have testified at recent budget hearings, and they operate at loss for each person they employ.  

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

By Gina Macris

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The corrective action topics and corresponding deadlines:   

Tools For Verifying Compliance

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

• June 30: The state would provide federal officials access to the database or a list of entries from which the judge, the monitor, and the DOJ could select to verify compliance.

• July 5: The monitor would give the state the list of records federal officials se;ect for verifying compliance. 

• July 12: The state would turn over the records the federal officials sought.  For example, federal officials would seek to determine whether all young adults who left school during the 2015-2016 school year had supported employment placements in the community by July 1, as required by the consent decree.

Funding Employment-Related Services 

• July 1: The state would implement a new model for reimbursing service providers that is flexible enough to cover the costs they incur. The current reimbursement system pays only for the time that workers spend in face-to-face contact with clients but not other activities like seeking out potential employers.

• July 1: In funding an array of services for a particular consumer, BHDDH would earmark some funds for supported employment. Currently consumers must give up something else to get employment-related services.  

• July 1: The state would “appropriately increase salaries, benefits, training, and supervision for employees of private agencies who work directly with adults with intellectual and developmental disabilities

• July 1: The state would implement at least some performance-based contracts with service providers that link funding to numerical targets and implementation timelines for “quality” job placements.

•  Dec. 31: The state would show evidence that all service providers have signed performance-based contracts.

• Dec. 31: The state would file with the court examples of weekly activity plans used by each provider of community-based day services that has received additional funding for those supports required by the consent decree.  

Assessment of Individual Need and Funding

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

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

CAREER DEVELOPMENT PLANNING

• June 1: The state would finalize a plan for ensuring that representatives of BHDDH and the Office of Rehabilitation Services of the state Department of Human Services (ORS) consistently attend annual educational planning meetings for high school students with developmental disabilities, with an eye toward their transition to adult services

• June 30: BHDDH, ORS and the Rhode Island Department of Education (RIDE) must implement ongoing training in the use of career development plans and must provide ongoing supervision to ensure that the plans are utilized as envisioned by the consent decree

•  June 30: RIDE must train all school census clerks to accurately report the number of career development plans in place

•  June 30: The state would hire a Program Developer and Employment Specialist

Communications

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

Organizational Activities

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

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

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

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