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.