Consent Decree's Community Task Force Airs Worries

By Gina Macris

Nicole Zeitler

While a federal judge is poised to compel the state of Rhode Island to comply with a federal consent decree intended to benefit people with developmental disabilities, the General Assembly, which holds the purse strings, does not appear to have a full understanding of the matter.

Donna Martin, executive director of a network of private disability service providers, expressed that concern March 15 at a meeting of the Employment First Task Force (EFTF), created by the 2014 consent decree to reach out to the community and to make recommendations as the state tries to implement the federal court order.

More than two dozen people, including Nicole Zeitler and Peter Stephan, lawyers for the U.S. Department of Justice, attended the task force meeting at Martin’s office at the CommunityProvider Network of Rhode Island (CPNRI) on Jefferson Boulevard in Warwick. The task force is chaired by Kevin Nerney, assistant director of the Rhode Island Developmental Disabilities Council.

The two DOJ lawyers had appeared at a hearing in Providence the previous day before U.S. District Court Judge John J. McConnell, who displayed a growing impatience with the state’s piecemeal compliance and affirmed a schedule for considering remedial action in April. 

Martin said, “I’m concerned about what’s going to happen after the evidentiary hearing and how the executive branch moves from the fallout of that without the full understanding of the legislature.“

McConnell is to hear evidence on compliance April 8 to help him shape a new court order for a remedial action plan.

“It concerns me that the consent decree is silent” on funding, Martin said. “That puts the onus on the advocacy community. The burden the developmental disability community is facing far predates the consent decree,” she said. “When the dollars are not appropriated, our hands are essentially tied.”

Martin was alluding to a 13 percent cut in the developmental disabilities budget the General Assembly made in the early hours of the morning on the last day of the 2011 session. The budget has not recovered the lost funding, while the caseload has grown in the last five years.

“While I understand that there are separate branches of government, I’m concerned that there is not a stronger coordinated voice with the legislature,” Martin said. 

Ray Bandusky, executive director of the Rhode Island Disability Law Center, said, “I think it’s important to emphasize that the overwhelming majority of legislators abhor consent decrees. I don’t see it being a big motivator.” 

The DOJ’s Zeitler said that “the consent decree doesn’t specify how it is to be funded,” but it does say that it will be “fully funded.”  The agreement was signed in 2014 by former Governor Lincoln Chafee and DOJ officials. 

In January, state officials acknowledged that the budget does not now contain enough money to implement the court order.

Zeitler said that the state promised McConnell it would show him budget numbers that are linked to compliance results for specific individuals affected by the consent decree. “We didn’t come up with that out of nowhere; It came from the consent decree,” Zeitler said.

 “We are waiting for a usable summary” of Governor Gina Raimondo’s proposed new budget; something that goes beyond the executive summary she included in her budget message to the General Assembly in early February, she said. 

The consent decree says funding is supposed to be built around the needs of the individual. In that context, Zeitler said it is “helpful to hear” from consumers who might say, “I ended up getting my tier (funding level) changed and it didn’t have anything to do with my needs.”

In between their appearances in court and at the public EFTF meeting, Zeitler and Stephan have met privately with people receiving services and with family members.

Funding hinders individualized services

The current funding structure hinders the community integration and personal choice that is at the center of the consent decree, because it is driven by ratios and has no flexibility to accommodate people’s needs,  Martin said.

To illustrate her point, Martin gave a hypothetical example of a day facility with a staff-to-client ratio of 1 to 8. If one staff member accompanies a person with a disability somewhere, that leaves another staff member with a double ratio of clients, Martin said. .

In other words, one person’s integration comes at the expense of another’s need for staff attention.

One parent said pressure from the consent decree to close segregated day facilities like the one in Martin’s example is resulting in groups of people with disabilities riding around in a van or car when one of them has to go somewhere.

“The day center has become mobile,” said Mary Beth Cournoyer.

“It looks like we’re following a path (toward community integration) on paper, but we don’t get there,” Cournoyer said.

She also indicated that the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) continues to determine an individual’s funding level through an assessment that was never designed for that purpose.

The consent decree specifically prohibits the state from using the assessment, called the Supports Intensity Scale, as a funding tool. 

Cournoyer said it would be “enormously helpful  to identify the roles and responsibilities of the task force.” 

The group, hampered by fragmented communication from state agencies and a lack of data needed to formulate policy recommendations, has struggled to define its role over the last two years.

Cournoyer said individuals with disabilities either are not being informed or are misinformed about changes that affect them. “Parents are screaming that they are going to take the money away,” she said.

Zeitler said, “There are amazing people in this room. I have heard all of you talk. I have every belief you can use the power you have.”

The consent decree says the Employment First Task Force “should include certain people, and more than half of you are advocates and parents,” Zeitler said, scanning the room. “Our position is that the state should be taking information from the task force and using it to change systems,” she said. 

Coordinator Introduced

The group welcomed Mary Madden, the interim consent decree coordinator, who spoke about her approach to the newly created secretary-level position.  

Madden, with 30 years’ professional experience in developmental disabilities in Rhode Island, has become widely respected in that field.

She said that while she will work toward the compliance goals spelled out in the consent decree, “the greater goal we should care about is inclusive lives for people in the community.”

She said she hopes to bring people from various departments of state government together“to work seamlessly as a team.”

The DOJ and the court monitor have argued that the consent decree calls for a coordinator with the clout to require cooperation from department heads.

Martin of CPNRI said her organization is pleased that the coordinator’s position has been moved outside any department of state government. “It’s difficult to effect change in departments that continue to be very siloed” when the coordinator’s position remains within one department, she said.

Before Madden’s appointment, the coordinator’s position was assigned to BHDDH. The former coordinator, Andrew McQuaide, now serves as Chief Transformation officer at BHDDH.

Madden said, “I want to do a job that matters and has impact. I’m an action-oriented person. I’ve never worked for state government; just the private sector. When something needs to get done, you just do it,” she said.

Even so, Madden said, she is sure she will encounter bureaucratic situations.  She also said “there are a lot of things about this position that are unknown and haven’t been hammered out.” 

Judge Losing Patience With RI in Disabilities Case

Federal court building on Kennedy Plaza in Providence, RI

By Gina Macris

An increasingly impatient federal judge warned March 14 that unless the state of Rhode Island shows progress soon in complying with terms of the so-called “sheltered workshop” consent decree of 2014, he is likely to impose sanctions.

 “To say I’m frustrated with the lack of progress is an understatement,” said Judge John J. McConnell, Jr.

“I’m not going to allow much procedural rollout before they (the state) will be sanctioned for non-compliance,” he said.  He did not elaborate.

The chief issue is a lack of money to implement the supports necessary to help people with developmental disabilities gain employment and participate in other non-work activities in their communities, as required by the consent decree.

The decree affects a total of about3,600 Rhode Island residents with disabilities, many of whom had been in sheltered workshops making sub-minimum wages in violation of Title II of the Americans with Disabilities Act. The requirements of Title II were spelled out in 1999 in a landmark U.S. Supreme Court decision entitled Olmstead v. L.C.

McConnell asked the lawyer for the U.S. Department of Justice (DOJ), Nicole Kovite Zeitler, why the DOJ had not already filed a contempt motion. 

Zeitler noted that at the previous status conference Jan. 26, the judge had indicated a willingness to work with both sides on cooperative measures short of contempt.

McConnell’s question also prompted a discussion ofshort-term deadlines the judge already has put in place that could lead up to a contempt finding if the state misses them.                                                                                                                       

By April 1, the state is to submit a status report on compliance that reflects a coordinated effort among the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH), the Rhode Island Department ofEducation (RIDE), and the Office of Rehabilitative Services of the Department of Human Services (ORS).  The report is intended to help the judge evaluate compliance.

On April 8, the heads of the three agencies, as well as the director of the state’s Office of Management and Budget (OMB), are to appear in court to produce evidence of compliance in a formal hearing.  If, after hearing the evidence, the judge finds the state must take additional steps, he will issue an order listing remedial actions.

DeSisto and DOJ lawyers originally proposed the compliance report be submitted by April 11 and the hearing be held April 18, but McConnell has moved each of those deadlines up by ten days.

Among other things, the latest order requires the state to present evidence that there is a defined budget for implementation of the consent decree that can link expenditures to results for specific individuals.

The court monitor for the case, Charles Moseley, who spoke by a telephone hookup to the hearing, said that while employment placements have increased, it appears those results have been achieved by community-based agencies acting independently of the consent decree. 

“The persons who have been placed have not been placed as a result of the budget but in spite of the budget,” Moseley said.

Like the judge, Moseley, Zeitler, and DeSisto each expressed their frustration with the lack of system-wide progress in implementing the consent decree, which has specific requirements and deadlines. 

Compliance is likely to come “late and piecemeal instead of on deadline,” said the DOJ’s Zeitler.

For example, she said, the consent decree required the state and the Providence School Department to help secure employmentbyJuly 1, 2015, of a total of  50 recent high school graduates who received special education. But so far, only 21 of them have been placed – less than half.

“Right now, we are at a bit of a crossroads,” Zeitler said.

The one bright spot cited during the hearing was appointment of Mary Madden as the secretary-level coordinator of the consent decree, with authority over the state agencies responsible for implementing its requirements. Madden was appointed at the end of January by Rhode Island Health and Human Services Secretary Elizabeth Roberts. Madden serves in an acting capacity.

 “I have a little ray of hope” that she’ll bring leadership to the state’s efforts, McConnell said.

Madden “in a short period of time has jumped into this,” Moseley said.

Madden, well known in the developmental disability community, is a policy fellow at the Paul V. Sherlock Center on Disabilities at Rhode Island College, where she has conducted research on public policy issues such as inclusion, employment, self-determination, and the design of systems of care and support.

A seasoned administrator with 30 years’ experience, she was president and CEO of the J. Arthur Trudeau Memorial Center from 2003 to 2012 and executive director of the Ocean State Association of Residential Resources from 1987 to 2003.

Madden is also owner of M-CUBED Consulting in Narragansett, which helps non-profit developmental disabilities organizations with strategic planning, program design, and team building. 

Judge to Consider Remedial Plan

 By Gina Macris

U.S. District Court Judge John J. McConnell, Jr. is poised to consider a remedial action plan to hasten Rhode Island’s compliance with a two- year-old federal consent decree requiring the state to provide community-based daytime services, including employment supports, to people with developmental disabilities.

The U.S. Department of Justice (DOJ) and the state have “jointly determined that, in order to facilitate compliance with the consent decree in this matter, the parties would benefit from a court ordered remedial action plan,” according to a proposed order filed with McConnell in Providence March 1.

 The judge is scheduled to hear the status of the case on Monday, March 14 in Providence, although a spokeswoman for the Court indicated March 8 that the hearing date may be rescheduled. (Update: March 14 at 10 a.m. confirmed as date and time) 

 The proposed Court order, along with a supporting joint motion submitted by the DOJ and the state, spell out a road map for the Court to proceed in considering the facts in the case over the next two months.

In a telephone conference Feb. 24 requested by the state, all sides agreed that three issues stand in the way of full compliance, according to the proposed order. The order and the supporting motion both cite money, the number of integrated, community-based placements, and leadership.

Both sides committed to compliance

"Both Plaintiff and Defendant remain committed to resolving the above listed issues and any other issues identified by the court," according to the joint motion, signed for the DOJ by Vanita Gupta, head of the civil rights division, and for the state by lawyer Marc DeSisto.

DeSisto and lawyers for the DOJ, as well as a Court monitor in the case, have told McConnell that the state budget does not now have enough money allocated to implement the consent decree. The monitor, Charles Moseley, also has said that if the state does not meet certain benchmarks now, it will not be able to comply with the final requirements of the order once the decade of federal oversight concludes in 2024. 

The joint motion and proposed order both call for an evidentiary hearing on April 18 that would require the appearance of the head of the state Office of Management and Budget as well as the directors of three agencies responsible for carrying out the consent decree: the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH), the Office of Rehabilitation Services (ORS) of the state Department of Human Services and the state Department of Education (RIDE). 

 A week before the hearing, the state would provide the judge with a written report on the status of compliance. During the hearing itself, “Defendant will provide the court with the information necessary to issue an order for remedial action to spur prompt compliance,” according to the proposed court order.

 The parties would reconvene May 2 so that the state can report on “progress relating to funding, placements, and the leadership required for full compliance,” as well as any other court order that may be outstanding at the time.

The monitor has sought the appointment of a secretary-level Consent Decree Coordinator who would have the authority to oversee compliance efforts of the three state agencies involved.   A secretary-level coordinator has been appointed only on an interim basis in recent weeks. 

RIDE is involved because it is responsible for providing transitional services, including school-to-work opportunities, for youth in special education as they approach their 21st birthday. These youth are of particular concern, according to the consent decree, because they are “at risk of entering sheltered workshops and facility-based day programs” when they reach adulthood.” 

Origins of the Consent Decree

The federal case started with a U.S. Department of Labor investigation into sub-minimum wages paid to people in one sheltered workshop. An expanded DOJ inquiry found that (Cut: found) teenagers and adults with developmental disabilities were being segregated from the general population in violation of the Americans with Disabilities Act (ADA).

The U.S. Supreme Court clarified the ADA’s mandate for integration in a landmark 1999 decision that many say struck down segregation for people with disabilities in the same sweeping way that Brown V. Board of Education banned “separate but equal” education for black students.

 The 2014 consent decree in Rhode Island, the first of its kind in the nation, spells out a series of specific deadlines for achieving an increasing number of supported job placements and individualized daytime activity plans over the 10-year period of federal oversight. 

Meanwhile, Governor Gina Raimondo has proposed a net increase of $8 million to the developmental disabilities budget now in place, with the total going from $229.7 million to $237.7 million for the period ending June 30. In the next fiscal year, developmental disabilities would receive a total of $235.2 million. 

Over the next 16 months, the governor’s plan would redirect more than $23 million within the developmental disabilities budget toward private agencies providing integrated daytime services. The state would create this financial boost largely by moving people out of group homes into shared living arrangements with families in communities throughout the state. 

This housing shift would involve 500 of 1300 people now in group homes moving into so-called shared living arrangements voluntarily by June 30, 2017, according to a BHDDH spokesman.  

Donna Martin, who represents an association of private agencies that support families offering shared living in their homes, has called the goal “very ambitious.”

RI Senate Committee Gets a Taste of Complex Federal Consent Decree

Charles Moseley, independent federal Court Monitor, left, and RI. Sen. Joshua Miller, D-Cranston and Warwick, chat after Feb. 25 briefing on federal consent decree requiring community integration of people with developmental disabilities. 

By Gina Macris 

Members of a Senate committee began to grapple with the complexities of a federal court case that has the potential to require the state to allocate millions of dollars to reform its services to Rhode Islanders with disabilities.

For an hour on Feb. 25, The Health and Human Services Committee was briefed about a federal consent decree that requires the state to give those with disabilities a chance to work and do other meaningful activities in the community.

 After the briefing, committee chairman Joshua Miller, D-Cranston and Warwick, said it wasn’t clear to him whether the state agency responsible for services to adults with developmental disabilities needed to reorganize, or whether a greater overall allocation is needed to comply with the consent decree.

“At any point will the decree require minimum funding?” Miller asked Charles Moseley, the independent Court Monitor in the federal case.

 Moseley replied that “the consent decree requires minimum funding now.”

Moseley said the “minimum funding” relates to activities necessary to achieve compliance, like an official to coordinate employment services, so that more people who need supports can get “up and working” in the community.

He gave other examples, saying that the key areas are employment and other meaningful non-work activities.

A. Anthony Antosh, director of the Sherlock Center on Disabilities at Rhode Island College, presented statistics which show a smaller percentage of people with developmental disabilities were working in the community in 2015, a year after the consent decree was signed, than were in supported employment in 2011, the year the General Assembly enacted a 13 percent budget cut in services that support them.  

The employment figure decreased from about 23 percent to about 21 percent in four years’ time, according to Antosh’ figures.

“What has increased is the number of people who are essentially doing nothing” during the day, he said.

“Roughly 40 percent are 50 or over, and most of them have very little to do,” Antosh said.

Moseley said that “if the investment is not made now, (the goals) won’t be met in ten years,” the lifespan of the consent decree.

But Moseley did not provide Miller with a dollar amount. 

In a hearing before U.S. District Court Judge John J. McConnell Jan. 26, both Moseley and the lawyer for the U.S. Justice Department, Victoria Thomas, said flatly that the current state budget does not contain enough money to fulfill the requirements of the consent decree.

And a week later, Governor Gina Raimondo made the same categorical statement in her budget message to the General Assembly.

Raimondo’s budget proposal asks for an additional $8 million in in developmental disability funding funding in the current fiscal year, bringing the budget to $237.7 million by June 30. The increase is designed to shore up the developmental disabilities division in the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH).

In the coming fiscal year, developmental disabilities would receive slightly less, $235.2 million under the governor's plan. However, the administration is proposing a way to sharply increase spending for community-based supports that are required by the consent decree without requesting another budget hike. Instead, the increase would be funded by savings that the administration hopes to achieve through major changes to residential programs, asking 500 adults with disabilities to move voluntarily from expensive group homes into shared living arrangements with families.

RI Senate President Favors Reforms in Developmental Disability System

By Gina Macris

  The time has come to reform the way Rhode Island supports people with disabilities, in particular by elevating the status of an underpaid workforce that provides direct care, the state Senate’s top leader says.

“This is a really an exciting and challenging time,” Sen. M. Teresa Paiva Weed, D-Newport, said Feb. 24, winding up a two-day conference at Rhode Island College that focused on strategies for attracting and retaining more highly skilled employees.

Paiva Weed said she was initially very concerned about a federal consent decree that requires Rhode Island to improve community integration of people with developmental disabilities, but “I have in my head decided that it offers an opportunity to transform our system if we all work together and meet the challenges.” 

Her show of support for developmental disability professionals comes at a critical legislative and legal juncture for Rhode Island. 

An independent Court Monitor said in January that the state has not allocated enough money to meet compliance goals spelled out in the consent decree, and the federal judge in the case indicated he is prepared to take further action to enforce the decree, if necessary. 

Paiva Weed noted that some people undervalue the care-taking workforce – and that those perceptions must change. 

“It’s okay to pay $25 an hour for somebody to throw paint on your wall,” the Senate president said. “But when you want to pay someone $15 an hour to care for people, everybody has a heart attack.”

 In Rhode Island, these workers earn roughly $11 an hour, on average.  

Paiva Weed said that a key Senate panel, the Committee on Health and Human Services, would get a briefing from the independent Court Monitor overseeing the state’s compliance with the consent decree the day after the conference, Feb. 25. The session was scheduled to start at 3 p.m. in the Senate Lounge. 

The Senate President said the legislature, the public, and even families of people with developmental disabilities need to be educated about what the consent decree means, reiterating one of the themes that had run through the conference.   

Paiva Weed said she has heard from constituents who are “very angry” with plans to fund community services largely by shifting residential costs from expensive group homes to shared living arrangements with individual families. About 500 of 1300 people living in group homes would move by June 30, 2017. 

“It’s a divided community,” she said. “Maybe some of it can happen through attrition. Maybe some of it can and some of it can’t,” she said, echoing doubts about the schedule for moving so many people in such a short time that were recently voiced by a spokeswoman for direct service agencies that oversee shared living. 

 “There are a lot of people who are huge advocates for you guys, but this is complicated and a lot of folks don’t understand how complicated this is,” the Senate President said.

Paiva Weed did not offer new suggestions about increasing the low pay of the developmental disability workforce, a key element in attracting and retaining employees.

Her guest appearance capped a series of brainstorming sessions that brought together state officials, community service providers, and a few family members of people with disabilities under the auspices of RIC’s Sherlock Center on Disabilities. 

In the end, the discussions gelled into concrete plans for the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) to launch a small model program on July 1 to showcase high quality training, effective supervision, and better wages for workers wo called direct support professionals.  

 Maria Montanaro, the BHDDH director, said it will require planning on an “aggressive schedule” to roll out a model program of best practices in developmental disability services by July 1, “but I think we can do it.”  Private agencies would apply to have their staff participate in the program.

 The program design must be completed by the end of March to allow time for approval by the state’s Executive Office of Health and Human Services, the legislature, and the federal Centers for Medicare and Medicaid Services, Montanaro said. 

Montanaro envisioned higher pay for workers in the pilot program, training that would lead to certification, and the use of smart devices to help people with developmental disabilities do a variety of tasks more independently and monitor them at critical times.

 At the same time, the BHDDH reimbursement rates to private agencies must be reconfigured, and regulations must be altered so that they do not collide with the planned innovations, said Andrew McQuaide, the department’s chief transformation officer.

 If the pilot program is successful, it could be implemented system-wide in 2018, he said. 

 An expert on implementing community-based services for people with developmental disabilities, Amy Hewitt of the University of Minnesota, advised the Rhode Islanders that any certification process should be voluntary if it is to succeed in the long run, suggesting that incentives and rewards work better than top-down rules.

 Questions remain about the details, including the use of technology. While proponents cited positive examples of smart devices that reduce the need for staff to watch routine activities or to provide reminders, one parent, Pam Goes, said she was concerned about the loss of privacy that might come with technology, such as TV monitors, even if they are only used part-time.   

Professional Workforce Key to Implementing Consent Decree in Rhode Island

By Gina Macris

Rhode Island faces a crisis in its inability to recruit and retain a high quality front-line workforce to support people with developmental disabilities. 

The problem - substandard working conditions and low pay in a poorly trained workforce plagued by high turnover - must be resolved if the state is to implement a landmark 2014 consent decree with the U.S. Department of Justice that requires dramatic changes in the way services are configured.  

That was the consensus Feb. 23 during the start of a two-day conference at Rhode Island College, where some 75 employers, researchers, state officials and family members brainstormed about how to jumpstart a new way of doing things – and getting the funding necessary to make it happen. 

Maria Montanaro, director of the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH)  wondered aloud if her agency could shift funding in the short term to roll out a high-quality pilot program demonstrating the need for better funding of the entire system.                                                               

With perhaps a quarter of the state’s 20 private developmental disability providers participating, she said, the pilot program would offer better salaries and training to motivate staff to show ways that services can be changed to support individual needs rather fit people with developmental disabilities into existing programs.  

That change is a pivotal element in requirements of the Consent Decree that mandate individualized supports in community-based settings.    

Montanaro said a successful pilot program would yield research data that could be leveraged into advocacy for increased funding system-wide during the2017 General Assembly session.  Such a pilot program would not require legislation, she said.  

Montanaro responded to a presentation at Rhode Island College (RIC) by Amy Hewitt, a Minneapolis researcher with a national reputation in identifying effective practices for helping people with intellectual and developmental disabilities live and work in their communities. 

Hewitt, director of the Research and Training Center on Community Living at the Institute of Community Integration at the University of Minnesota, set the tone for discussing advocacy strategies that are based on research statistics gleaned in the implementation of new policies.  

She was hosted by her counterpart in Rhode Island, A. Anthony Antosh, director of RIC’s Sherlock Center on Disabilities, which is charged through the consent decree with showing the way toward greater community integration.  

Montanaro said, “We have to get the advocacy voice mobilized in Rhode Island” so that the message of the disability community gets to the legislature “in a cogent and compelling way.”  

She said she is in a position to speak to Governor Gina Raimondo, but in the executive branch, “they’re responding to the legislative temperament.”  

Governor Raimondo’s latest budget proposal, now before the legislature, asks for some additional funding for developmental disabilities. To a greater degree, however, it would shift residential supports from expensive group home care to less costly shared living arrangements in private homes and use the savings to support employment and other community-based activities.  

The state also could leverage additional Medicaid money in creative ways to provide community-based services, Montanaro said.  

Mary Madden, the state’s new interim Consent Decree Coordinator, noted that expanding the use of Medicaid money still would mean convincing the state to pay for half the new funding.  According to Medicaid rules, the federal government pays for about 50 percent of allowable services, as long as states pick up the other half.  

Hewitt, meanwhile, said legislation and litigation drive public policy, with lawmakers responding only when the the data backs up the argument for change.  

 “The happy stories are not going to get money,” she said. Policy makers don’t make decisions based on the “feel-good stuff. That’s the realist in me talking. They make decisions based on unmet need” that is supported by statistics.  

“We expect the direct service professional to be a little bit of everything,” Hewitt said, referring to the formal title of front-line worker.

The job encompasses the role of teacher, nurse, psychologist, occupational and physical therapist, counselor, nutritionist, chauffeur and personal trainer all at once, she said. 

Yet direct service professionals are paid an average of a little less than $11 an hour in Rhode Island, she said. 

“You have to figure out a way” of changing perceptions so that “these people are not thought of as workers but professionals,” she said.  

The workforce problem in the field of developmental disabilities runs nationwide, Hewitt said.  

“No state has solved this problem, but there are few states further along the path,” she said.  

Hewitt offered a myriad of statistics that link training, supportive supervision, and decent pay to a stable, high-quality workforce that makes a difference in the lives of people with developmental disabilities.  

She is to return Feb. 24 to serve as a resource as the group of about 75 works on specific strategies for stabilizing and improving the system in Rhode Island.  

The conference participants are mostly senior officials of the private agencies that provide services to almost all the 3600 people with developmental disabilities in Rhode Island.  No front-line staff attended.  

Pam Goes, the mother of an adult with developmental disabilities, said families need to be included in policy-making and advocacy statewide.  

“Right now families feel isolated and apart,” said Goes, who is also a former family support director at the Trudeau Center in Warwick.

Developmental Disabilities Budget: Cause for Optimism, Cause for Concern

By Gina Macris

Rhode Island Governor Gina M. Raimondo is moving “in the right direction” by proposing to spend roughly $20 million more on efforts to more fully integrate developmentally disabled adults into the community, says the executive director for a network of private agencies that will do the lion’s share of the work.

 “That is a pretty remarkable show of commitment for this community,” Donna Martin, who oversees the 23-member Community Provider Network of Rhode Island (CPNRI ), said in a telephone interview Feb. 11.

 The community provider agencies, largely dependent on state contracts, have been operating at a loss for several years, and it is not yet clear how far Raimondo’s budget will go in shoring them up financially.

 Martin says she needs to confirm the details of the plan with the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) before commenting further on the prospects of the agencies getting out of the red.

 “Regardless of how we slice it, it’s a big step forward,” she said.

 Accomplishing a court-ordered shift toward community integration depends on millions of dollars in additional funding from the General Assembly and millions of dollars in savings, achieved primarily by moving 500 of 1300 people living in group homes into shared living arrangements with families throughout the state.

 Whether the state can accomplish a voluntary transfer of 500 individuals to new living arrangements in a 17-month period remains to be seen. Martin says the private agencies which arrange shared living situations, support host families, and provide quality control for BHDDH have expressed concern about the pace of the transition. 

Andrew McQuaide, Chief Transformation Officer for BHDDH, says that goal is achievable. No one will be forced to move, he says.

The state finances most supports for adults with intellectual challenges in two ways:  through state-run group homes and apartments, special care facilities and a day site that serve 210 individuals; and through similar residential arrangements and an array of other services run by the private agencies for about 3500 people — nearly everyone with an intellectual disability in Rhode Island eligible for some level of service.

High Court Mandated Change

 Raimondo’s multi-million dollar booster shot for the beleaguered private agencies is intended to help shore up chronic underfunding and launch a transformation of services for people with developmental disabilities that aligns with a 1999 U.S. Supreme Court civil rights decision. 

 Called the Olmstead decision for short, the Supreme Court ruling affirms the rights of people facing intellectual challenges to live, work, and play in their communities, just like anybody else.

 A 2014 civil rights consent decree between Rhode Island and the federal government – the first of its kind in the country – gets its authority from the Olmstead decision.

 Requiring the state to move people with developmental disabilities out of segregated workshops into community-based employment, the consent decree, in effect, results in the federal court ultimately having more power than the General Assembly over the amount of money that goes into developmental disability services and how the money is spent.

As budgetary discussions progress in the state legislature in the months to come, the ramifications are sure to surface at hearings bringing together the U.S. Department of Justice, state lawyers, and an independent Court monitor before U.S. District Court Judge J. McConnell, Jr.

At the first hearing in Providence in late January — about a week before the Governor announced her budget plan — all sides agreed that the state, so far, was making insufficient progress toward the 10-year goals in the consent decree.

 They acknowledged the Court’s authority to find the state in contempt and order any remedies it sees fit. Judge McConnell said he hoped to avoid such proceedings and in the near term would advise the parties at status hearings to be held every three months.

Millions More for Community Services

 In the fiscal year which begins July 1, Raimondo proposes an increase totaling $12.8 million to strengthen and expand community-based services for people with developmental disabilities.

The total includes:

• $5.8 million to pay for growth in the developmental disability caseload as more children with special needs, particularly autism, reach the age of 21. The increase is now running at a rate of 100 a year, according to a       BHDDH  spokesman. Families are having trouble securing services for which their young adults are legally entitled. In addition, youth in transition to adulthood is one demographic that is a priority in the 2014 consent  decree. 

• A $1.9-million increase for model programs intended to show the way for private agencies as they shift toward community-based employment and other integrated daytime activities.

• $5.1 million for wage increases of roughly 4 percent, or 45 cents an hour, for private agency staff, some of whom are making minimum wage and eligible for public assistance.

Depressed wages and eroding benefits have fueled high turnover and caused instability in staffing since 2011, when the legislature enacted cuts that ultimately slashed $26.5 million from the appropriation to the private agencies.

Martin said the state initially calculated the budget cut would mean an average hourly rate of $12, but agencies were forced to further reduce wages to help pay for health benefits and other fixed employer costs, including taxes and workers’ compensation.

The average hourly rate dropped to about $10.50, she said. The rate has inched up to about $11.55 an hour, on average, but employers have had to sharply cut benefits to help offset even these minimal wage increases.

The upshot is this: Private agencies operate at a loss for each person they employ, Martin said.

The $5.1 million line item designated for wage hikes does not cover the related labor costs or benefits, according to McQuaide.

Call for Supplemental Funds Now

Raimondo’s budget message also addresses funding issues in the current fiscal year intended to cover a shortfall of as much as $6 million while also expanding community-based services.

The governor plans to spend an additional $11.3 million for developmental disabilities, with some of that money coming from a supplemental appropriation and the rest from the savings realized by moving 100 adults from group homes to shared living arrangements by June 30, the close of fiscal 2016.

An additional 100 people would move to shared living in each of the four quarters of the next fiscal year to reach the goal of 500 transfers by June 30, 2017. On average, BHDDH saves $19,400 a year for every individual who moves from a group home to a shared living arrangement, according to a department spokeswoman.

The consent decree, which affects only daytime activities, is not the only pressure on the state to make changes.

New federal Medicaid rules for Home and Community Based Services (HCBS) address round-the-clock supports; saying, among other things, that people with developmental disabilities must be allowed to live in the least restrictive settings possible. Developmental disability funding comes from federal and state Medicaid dollars at a ratio of roughly one to one.

The changed Medicaid rules, as well as the high cost of running group homes, are reflected in Raimondo’s planned shift from group home residential care to shared living arrangements.

To help balance the budget, Raimondo would cut an overall $15.5 million in operating expenses for 23 state-run group homes. Non-personnel expenses for these group homes would drop 46 percent, from the current allocation of about $33.2 million to about $17.8 million in the next fiscal year.

The 296 unionized employees now assigned to the state-operated network of facilities would keep their jobs; changes in their duties would be subject to labor-management talks, according to McQuaide.

McQuaide said community living aides on the state payroll who are employed seasonally are paid at a rate that amounts to $35,688 a year. For full-time aides, the annual salary range is $37,280 to $49,618. Those figures do not include overtime.

Employees who do essentially the same work in the private system make an average of $11.55 an hour, which adds up to a little more than $24,000 for a full time staffer.

A pay increase to $12.00 an hour would just put the private agency workers back to where the state figured they would be after the 2011 budget cuts.  “We would like to pay our staff dramatically more,” Martin said.

Ambitious Expansion of Shared Living

The goal of shifting 500 adults to new living arrangements in the next 17 months suggests that dozens of state and privately-operated group homes will be closed. A BHDDH spokeswoman says that number is not immediately available.

“Philosophically the provider community embraces shared living as an element in the continuum of care,” Martin said.

“We’re trying to balance the state’s initiative, which is not unique to Rhode Island, but we will do everything we can to make sure each person has a choice,” she said.

 “That said, the number of 100 a quarter is very ambitious,” Martin said.

Shared living is not foster care, perceived as a temporary arrangement, but instead is based on a lasting relationship that takes time to develop, she said. Many times shared living arrangements occur between group home residents and people who they already know and like, Martin said.

”We really try to stress helping people find that home provider they have a connection with,” Martin said. Even if the private agencies locate 100 potential family providers every quarter, “it doesn’t mean we have 100 matches.”

There is extensive preparation for shared living and the process is stopped if at any time anyone involved – the client, a family member, community provider, or state social worker- forms an opinion that the arrangement would not be a good fit, McQuaide said.

Shared living has been an option in Rhode Island for 10 years, McQuaide said, and in that time 267 people with developmental disabilities have chosen that living arrangement.

The state “has not necessarily done a good job” in making sure that host homes have the supports they need, he said.

Whether or not BHDDH creates 500 new shared living arrangements in the next year and a half, he said, the experience will “provide us with an opportunity to assess what we need to do differently.”

“This is the direction we want to go in and we want to do it right,” he said. 

Will the Budget Pass Muster with the Judge in Disabilities Case?

By Gina Macris

When Rhode Island Governor Gina Raimondo proposes a new state budget on Tuesday, Feb.
2, U.S. District Court Judge John J. McConnell, Jr. will be watching to see how the state plans to keep its promise to reform employment opportunities and other daytime services for people with disabilities.

 Rhode Island isn’t spending enough money to meet the deadlines set out in two and three-year-old consent decrees reached in landmark cases involving the Americans with Disabilities Act (ADA).

 And an independent Court monitor overseeing the state’s efforts has said that if Rhode Island doesn’t meet certain benchmarks now, it will be unable to accomplish long-term goals at the end of the decade-long federal supervision spelled out in the consent decree.  

 But at a hearing Jan. 26, a state lawyer told McConnell that Raimondo’s budget would be a “game changer” in advancing Rhode Island’s response to the mandates.

 An internal committee of the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) tasked with redesigning services for people with developmental disabilities recommended $36 million in reforms last May,  but in an interview last Friday, a BHDDH spokesman said it is “very unlikely” that sum might appear in the governor’s proposal. 

If the Governor’s proposal falls short of McConnell’s expectations, it could set the scene for some courtroom drama during the upcoming months of budget deliberations at the State House.

The Court has the power to find the state in contempt – if it comes to that – and McConnell made it clear on Jan. 26 that he would not hesitate to use his authority if it is necessary. But said he hoped to avoid it.

 Let’s follow the case and the money at the heart of the issue before the Court.

The case surfaced in 2013 with a consent decree between the U.S. Department of Justice and the City of Providence over Providence teenagers with developmental disabilities, who had been segregated in a program called the Harold A. Birch Vocational School. Birch prepared them for a lifetime of rote assembly-line jobs –at sub-minimum wage – in a sheltered workshop for adults at an agency called Training Through Placement in adjoining North Providence.

 The 2013 settlement – the first of its kind in the nation - asserted the young people’s right to receive services to support them in employment and day activities in more integrated, community-based settings in accordance with the Americans with Disabilities Act.

 "The Supreme Court made clear over a decade ago (in the so-called Olmstead decision of 1999) that unnecessary segregation of people with disabilities is discriminatory. Such segregation is impermissible in any state or local government program, whether it be residential services, employment services or other programs,” a U.S. Justice Department spokeswoman said at the time.

A year later, in June, 2014, the Justice Department’s Civil Rights Division reached a statewide agreement with then-Governor Lincoln Chafee which mirrored the Providence settlement.

Today, 31 percent of Birch graduates are employed in community-based settings – up from 14 percent six months ago – but those numbers fall far short of the mandated goal of 100 percent, according to the independent Court monitor, Charles Moseley, whose oversight continues through 2024. 

 He and a Justice Department lawyer, Victoria Thomas, each laid out a laundry list of other deficiencies in the Jan. 26 hearing before McConnell, who said he wanted to see the parties before him again in three months. 

 Now to the money:

 In the fiscal year that ended June 30, 2005, Rhode Island paid $187.3 million in state and federal dollars to private agencies providing services to Rhode Islanders with intellectual disabilities, according to state figures. Currently, the state allocates $188.4 million to those services.  It’s all Medicaid money, with the state providing 45 cents on the dollar and the federal government paying the rest, according to the BHDDH spokesman.  

In the meantime, the number of people reaching adulthood with developmental disabilities has been increasing. The current annual rate is about 100, and the average yearly cost of supporting one person is $55,000. 

 From 2005 through fiscal 2008, the DD budget rose to $215.3 million. But as the shockwaves of the 2008 economic crash reverberated, the budget shrank, as did DD allocations in other states.

 While some other states started restoring money to DD services, Rhode Island slashed further.

 For the fiscal year ending June 30, 2012, the Rhode Island General Assembly chopped nearly $26.5 million off the allocation, reducing it from $206.5 million to just under $180 million. That’s a cut of 12.8 percent in one year.

And BHDDH put in place a reimbursement system that does not cover all the services that agencies provide during daytime activities – only face-to-face contact with clients. The legwork necessary to set up job interviews or community activities, for example, is excluded. This arrangement “incentivized” the segregation of people with developmental disabilities in sheltered workshops and day facilities, Thomas, the Justice department lawyer, told McConnell on Jan. 26.

 Even though the BHDDH administration changed with the inauguration of Raimondo as Governor in 2015, the reimbursement system remains in place. Moreover, BHDDH allows agencies to collect the money owed for daytime supports only through a burdensome reporting process that requires documenting each worker’s time in 15-minute blocks, for each client. If a client is sick, the agency does not get its client-specific incremental payment for that day.   

Since 2011,  private nonprofit providers have cut workers’ pay to an average of $11 an hour, staff turnover has skyrocketed, and two agencies have closed their doors.

 In an interview on Friday, the BHDDH spokesman, Andrew J. McQuaide, acknowledged that satisfying the mandate for integration “fundamentally costs more than the system we have now.” He agreed that the system is geared toward “congregate centers for day programs and employment.”  Service providers should be held accountable, though, said McQuaide, the department’s new Chief Transformation Officer.

 Last October, Maria Montanaro, the BHDDH director, told a group of parents that the $36 million in redesign recommendations had been tabled because of the cost.

 On Friday, McQuaide said it’s “very unlikely” the $36 million in reforms would re-surface in the Governor’s budget proposal. 

“I’m unaware of anyone who thinks the state can afford to increase the DD funding by $36 million in a single year,” he said. “It would be unprecedented in a single fiscal year.”

“The question becomes how to sequence this,” McQuaide said.

 He said he couldn’t speculate on how the court will react.

 “There’s no way of knowing what would please the court,” he said. But “at the end of the day I am optimistic we will move in the right direction.”