Insurmountable Deadline?

By Gina Macris

An independent federal court monitor says there is “minimal likelihood” Rhode Island will achieve ultimate compliance with a long-running civil rights consent decree in 2024 unless all court-ordered changes to the developmental disabilities system are implemented by July 1 – three months from now.

The monitor, A. Anthony Antosh, submitted a status report on the case to Chief Judge John J. McConnell, Jr. of the U.S. District Court in advance of a public hearing April 27.

He said many changes are needed in the developmental disabilities system to increase employment and participation in community activities in keeping with the Integration Mandate of the Americans with Disabilities Act. In the end, these new experiences in the workplace and in the community will change lives, Antosh said.

A. Anthony Antosh

The state Director of the Division of Developmental Disabilities, Kevin Savage, expressed confidence in a recent virtual public forum that the state will meet the deadline for full compliance on June 30, 2024 but gave few details.

With less than 15 months remaining in the term of the consent decree, the monitor spelled out the ways the state is still in the “messy middle” of change, with few measurable results so far.

For example, in the year between October, 2021, and October, 2022, a total of 16 persons with developmental disabilities got jobs, bringing the total number of employment placements to 984 during the life of the consent decree, or 68 percent of the compliance target - 1456.

In addition, interviews conducted with 25 adults eligible for developmental disability services indicated that the consent decree, signed in 2014, has not yet impacted the lives of most people it is intended to protect. Only about 30 percent of those interviewed had a knowledge or understanding of the consent decree, Antosh said.

“This is not really surprising, given that BHDDH does not do direct communication with all individuals / families on a routine basis,” he said. Improving communication must become a priority, particularly in light of numerous changes that must be implemented during the next year.

Antosh said additional interviews will be conducted to monitor the effect of the consent decree on individuals receiving services. For the state to reach full compliance, at least two thirds those interviewed must report they have a “community-based life, achievement of personal goals, and satisfaction.”

The April 27 hearing will allow the court to clarify its position on details of implementation just before state budget talks shift into high gear in May for spending in the next fiscal year. The General Assembly is expected to consider hefty increases in funding and changes to the way developmental disabilities services are delivered in accordance with a rate review by an outside consultant.

“It should be noted that the State essentially agrees with all of the expectations and required actions,” Antosh said, but a lack of capacity has prevented it from moving faster to complete all the required changes.

A decade of chronic underfunding depressed the wages of caregivers and destabilized the developmental disabilities workforce until the state, pressured by the court, increased pay by about 40 percent in the past two years from an average of $13.18 per hour to $19.52. While a workforce recruitment initiative has shown some success in hiring and retention, the number of direct care workers has still not hit pre-pandemic levels, Antosh said.

The consultant for the rate review, the Burns & Associates Division of Health Management Associates (HMA-Burns), has recommended additional rate increases of about 22 percent, which would cost $57 million, according to projections made in January. Based on a court ordered minimum wage of $20 an hour for direct care workers planned for July, HMA-Burns has projected the average hourly pay will be $22.14 in the coming fiscal year.

But the system-wide changes necessary to comply with the consent decree involve a careful orchestration of many moving parts, including professional development and training. Antosh said the state must budget for training separately from the rate structure for direct care workers and others. In the rate review, HMA-Burns included time spent in training activities as part of a mathematical formula for determining hourly rates, but Antosh said that doesn’t cover the cost of the training that will be expected.

While state has been making mostly satisfactory progress in planning activities the last few months, the “ultimate criterion” will be the “quality of implementation,” the monitor said.

Antosh said BHDDH is in the process of hiring eight new staff members in the Division of Developmental Disabilities to help direct implementation efforts and also has received approval to hire a Spanish-speaking social worker. That change, which appears to carve out an exception to union seniority rules, responds to complaints from the Latino community that date back to the inception of the consent decree in 2014.

Some social workers already on staff will be re-assigned to high schools to help teenagers making the transition from special education to the adult service system, Antosh said.

The monitor laid out another major change he said is essential in ensuring that persons with developmental disabilities get individualized programs of services that help them lead regular lives in their communities.

Until now, the state has used a standardized assessment called the Supports Intensity Scale (SIS) for determining individual budgets from a menu of about 20 options, depending on a person’s degree ability to function independently – or lack of it. Programming has been fit into the budgets.

Antosh says planning for individualized services must come ahead of budgeting to ensure a “person-centered” approach in which the needs, preferences and goals of individuals drive the programming.

While the state has already agreed to make employment-related supports available to all by separating these services from core budget options, Antosh said the same must be done for community-based activities.

HMA-Burns recommends that all day programs, including center-based care and community activities, remain part of core budgets assigned by levels, or tiers of support determined through the SIS assessment. Transportation, overnight shared supports, and respite care also would be part of the core budgets, with individuals having the option of shifting funds between categories.

As an example of the trade-off, the rate review cited the hypothetical example of an individual who could choose to receive fewer hours of daytime services to get more transportation.

But the monitor said, in bold type for emphasis, that community-based activities “should NOT be subtracted from core individual budgets.”

“Development and expansion of community-based models for employment and community participation need to be a primary focus for 2023-2024,” he said.

Several factors related to the assessment and planning process will complicate the implementation of a “person-centered” approach:

• The state doesn’t yet have a budget for paying the independent facilitators or case managers

• A revised version of the SIS assessment to be used by facilitators was released by its developer only a month ago, in mid-March.

• The supplemental assessment questions are just now being rolled out in SIS interviews.

• Both the new SIS and the supplemental questions require a ramp-up period to be fully integrated into the assessment process.

In a workflow chart attached to the monitor’s report, the state indicated it plans to have all components in place by July 1.

The hearing will be streamed live before Chief Judge John J. McConnell, Jr. April 27 at 2 p.m. The Zoom meeting ID is 161 975 2551 and the Passcode is 651294. For a link to the court’s Zoom platform and an up-to-the-minute court calendar, click here

Find the latest Monitor’s report here

The monitor included attachments from the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals, the Rhode Island Department of Education, which is responsible for transition services for high school students with developmental disabilities; and a multi-agency report on coordinating funding sources for employment supports.

In addition, The Executive Office of Health and Human Services submitted a report on a pilot program for “conflict-free case management”, which will use the independent facilitators the monitor mentioned, and is required by the is Centers for Medicare and Medicaid Services for all Medicaid and Medicare recipients, not just those with developmental disabilities.

The HMA-Burns Rate Review Summary

BHDDH Workplans

RIDE Transition Action Plan Status

RIDE Transition Work Plan

BHDDH Communications Plan

Multi-Source Funding For Employment Services

Multi-Source Funding Graphic

Conflict-Free Case Management

Judge Tightens Reins On RI DD Consent Decree Compliance

By Gina Macris

It’s been eight years and eight months since Rhode Island signed an agreement with the U.S. Department of Justice to improve the lives of adults with developmental disabilities by ending their segregation in sheltered workshops and day care centers.

But with 16 months remaining for the state to fully comply with the consent decree, the state’s progress falls far short of the goals, according to the report of an independent court monitor made public Dec. 6.

On that day, U.S. District Court Chief Judge John J. McConnell, Jr. incorporated the monitor’s wide-ranging recommendations into an order outlining some 50 tasks to be completed before June 30, 2024, when the 2014 consent decree expires.

McConnell also scheduled a public hearing on the status of the consent decree for Monday, Dec. 12, at 2 p.m.

Parts of the order will require additional changes to a preliminary review of rates for developmental disability services that was made public in September.

The recommendations of the monitor, A. Anthony Antosh, provide a snapshot of the current system:

1. Forty-four percent of those who once toiled in sheltered workshops, and 33 percent of those who spent daytime hours in centers, have found jobs in the community since the consent decree was signed, far below expected levels.

2. About one third of adults – and more than half of young people moving from high school to adult services – do not participate in community activities. The consent decree promised a 40-hour week filled with work and activities that are purposeful to each of some 4000 persons eligible for services.

 Antosh recommended a way for the state to meet its targets: bring system-wide funding to existing pilot programs that have shown success in employment and integrated community activities – the fruits of some $12 million in “Transformation Grants” made during the past year.

Judge McConnell has given the state until next July to put that funding in place – and to figure out how to fit it into the rate review or find some other way to do it.

The monitor said that “individuals and families report uncertainty and lack of information” about the consent decree, the Employment First policy emphasizing competitive employment for those with disabilities, and community activities.

Families of young people moving from high school to adult services say they generally are “overwhelmed by the process and report not having sufficient information or support,” Antosh said.

The court ordered the state to put a streamlined application for adult services in place and to give every family a consistent point of contact to serve as a guide during the transition. These are two more of the 50 tasks the state must complete in 2023 or 2024 to comply with the consent decree.

Antosh put the state on notice that his final evaluation of the state’s compliance with the consent decree in will include an assessment of its impact on people’s lives. Positive impact will be measured by at least two thirds of a random sample of individuals reporting a “community-based life, achievement of personal goals, and satisfaction” during independent interviews, he said.

In the last few years, Judge McConnell has recognized that a key problem in the implementation of the consent decree has been a lack of front-line staff, who, until mid-2021, were paid an average of $13.18 an hour, too little to attract an adequate workforce.

The General Assembly increased wages from $15.75 to $18 an hour in July, and McConnell has ordered that rate to increase to $20 an hour by 2024.

In recent months, the state has stepped up its recruitment efforts, with 146 new hires reported in September by a recruitment consultant, Antosh said.

McConnell ordered those recruitment efforts to continue, with emphasis on helping individuals and families who direct their own services. The state’s figures indicate this group now makes up about a quarter of all those receiving developmental disability services.

Among other things, the state must explore the possibility of a mechanism to provide health benefits to for those who work on an hourly basis for individual families by July, 2023.

McConnell’s court order also signals that neither he nor Antosh are in agreement with some features of a recent rate review that would update the fee-for-service reimbursement system the state uses to pay private service providers who deliver the actual day-to-day supports to adults with developmental disabilities.

A spokesman for the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) said Dec. 1 that “changes have been made to the recommendations” since they were presented to the public in September on the basis of “public comments, including the Court Monitor’s and those from other stakeholders.”

“These final recommendations are now under review and will be made public after review,” the spokesman said.

The rate review recommendations as they now appear on the health policy webpage of the outside consultant, the Burns & Associates Division of Health Management Associates, (here) cover everything from assessment of need to the allocation of individual budgets and billing requirements, in addition to revisions to dozens of rates that would be used to continue a fee-for-service system called Project Sustainability, introduced in 2011.

The Burns & Associates recommendations would continue requiring service providers to bill in 15-minute units from an extensive menu of rates for services provided during the day, despite recommendations from a study group and the monitor that the detailed –and costly - paperwork should be eliminated.

Now, as part of McConnell’s action Dec. 6, the state has been ordered, in bold type for emphasis, to “simplify the billing process” through the rate review by July, 2023.

McConnell’s order also elevates several other recommendations Antosh has made touching on the rate review, directly or indirectly.

For example, the state has made it clear that it plans to continue using a standardized interview called the Supports Intensity Scale (SIS) to determine individual support needs, with the addition of supplemental questions to capture particular behavioral or medical issues.

Antosh noted that while the state may continue to use the SIS, the court has previously directed it to explore alternate assessment methods. “Now might be the time,” he wrote.

He also said there should be a funding mechanism that allows individuals and families to “identify unique needs and costs” that go beyond the results of any standardized interview and supplemental questions. Nor should Individuals have to file appeals to get the additional funding (as is now the case), he said.

Antosh discussed “person-centeredness,” how the bureaucracy should enable individuals, with the support of families and advocates, to become empowered to take charge of their own lives, setting short-term and long-term goals and realizing them through day-to-day supports.

A key to this empowerment is first making a service plan based on individual needs and then matching funding to that plan, with an independent case manager or facilitator guiding the process, Antosh said.

Currently, individual service plans are designed to fit into a funding formula that has about 20 options, based on an assessment of need. BHDDH, which determines both individual need and funding, has not indicated it wants to change the current approach, except to fund employment supports as an add-on to the basic budget.

On a statewide level, the Executive Office of Human Services has devised a draft plan for independent, or “conflict-free” case management for all Rhode Islanders receiving Home and Community Based Services (HCBS) funded by the federal-state Medicaid program, including adults with developmental disabilities.

The draft plan proposes a flat rate for all HCBS case management that is yet to be disclosed. It is not clear that the plan fits the monitor’s vision of conflict-free case management, but it will have to meet the requirements of the court and the consent decree as it applies to adults with developmental disabilities.

Public Access to Hearing, EOHHS Meetings

The remote-access public hearing on the consent decree begins at 2 p.m. Dec 12 before Judge McConnell. The meeting will be hosted on zoom.gov The Meeting ID is 160 1690998, and the Password is 488765. This information is also on the court’s public access page, here, along for instructions on dialing in to the audio only. Please note that due to an apparent typographical error, the date of the hearing on the public access page is incorrect.

Maenwhile, at 3 p.m. Monday, EOHHS will host the first of three public comment meetings on the draft plan for conflict-free case management. Advance registration is required for that session and two other meetings, Dec. 14, and 15, both also at 3 p.m. Registration links and other information about conflict-free case management can be found here

Read the Dec. 6 court order here.

Read the EOHHS draft plan on conflict-free case management here.

$2.5 M Unused For Lack of RI DD Jobs Program

CVS Trainee - File Photo

By Gina Macris

This article was updated Sept. 10.

A total of $2.5 million dedicated to helping adults with developmental disabilities find new jobs remains unused because the Department of Behavioral Healthcare, Developmental Disabilities, and Hospitals (BHDDH) hasn’t yet decided on a program for spending the money..

 A department spokesman has clarified an earlier statement about the amount of money lacking a spending program.

In addition, the Division of Developmental Disabilities (DDD) is still seeking a replacement for the chief employment administrator, who left May 1.

The lack of readily available BHDDH funding dedicated to expanding the number of job placements was disclosed by the Director of Developmental Disabilities at a virtual public forum in August.

The situation represents one factor threatening the promise of a 2014 federal court consent decree to change the lives of people who once spent their days in sheltered workshops or day centers cut off from the rest of the community.

A parallel issue at the top of the list of concerns of an independent monitor is a shortage of skilled workers who assist people with disabilities to find meaningful jobs and expand their activities in the wider community.

The workforce shortage has taken on heightened urgency since the monitor recommended last week that the U.S. District Court accelerate recruitment of workers and possibly impose multi-million dollar fines against the state for noncompliance of the consent decree. (See related article.)

Until a new DDD employment program is adopted, adults with developmental disabilities must either seek state-sponsored employment services funded outside BHDDH or reduce other types of BHDDH service hours to pay for help finding a job.

Limitations on employment supports built into the current developmental disabilities system are part of a comprehensive review now underway of reimbursement rates for private service providers and administrative barriers to integrated services,

The 2014 consent decree anticipated that by 2022 – eight years later – Rhode Island would be scaling up pilot programs of supported employment that would reach some 4,000 people.

But BHDDH has never scaled up. Its first pilot program emphasizing individualized employment supports began in 2016 and underwent several iterations until the final version, the “Person-Centered Employment Performance Program 3.0” ended June 30.

The DDD director announced in February that the program would not be renewed but did not explain the reasons.

At the same time, the director, Kevin Savage, hinted at frustration on the part of the chef administrator for employment services, Tracey Cunningham, saying that she would be “leading the charge” in designing a new supported employment program “if Tracey stays with us, and puts up with us longer.”

But Cunningham, Associate Director for Employment Services since 2016, announced her departure in early April. BHDDH has posted the position twice but has not yet found a replacement for Cunningham.

The BHDDH spokesman could not say why a new supported employment program has not yet been put in place but said the “the DD team is meeting with stakeholders to determine a spending and engagement plan.”

Job Placements Fall Short

In an August 29 report to Chief Judge John J. McConnell, Jr., the independent monitor, A. Anthony Antosh, documented the state’s limited capacity to serve adults with developmental disabilities.

For example, 23 of 31 agencies serving people with developmental disabilities said in a survey they had to turn away clients or stop taking referrals between July and December of 2021 because they did not have the staff to provide services,

By July, 2022, the state had found jobs for only 67 percent of the consumers that it had promised in the consent decree – 981 of 1,457. (The new-job totals span the entire term of the consent decree, whether or not a particular individual is currently working.)

Antosh said that job placement numbers have remained flat throughout 2021 and 2022, increasing by only 17 in a 12-month period.

In general, he described the developmental disabilities system as being in the “messy middle,” borrowing a phrase from Michael Smull, a developmental disabilities expert on system change.

Antosh said elements of the system desired in the future have been defined, and some individuals are beginning to see progress. But he said most still face the restrictions of the current system, “which needs to be funded and maintained while the future is being built.”

Funding will depend on the results of the ongoing program review that is now underway and how the recommendations will be received by the governor and the General Assembly.

Rate Review To Finish Nov. 1

Under court order, BHDDH moved forward with the comprehensive review, hiring Health Management Associates, the parent company of Burns and Associates, earlier this year. Burns and Associates helped the state a decade ago to implement the current system, which the DOJ found violated the Integration Mandate of the Americans With Disabilities Act. (Burns & Associates says the state did not implement its recommendations for that program.)

The DD director, Kevin Savage, said the review will be completed Nov. 1, a month earlier than expected. He told a public forum in August that he plans to schedule another public meeting shortly after the review is completed to gather feedback from the community before the BHDDH budget goes to the Governor, who must present a proposal to the General Assembly in January.

The review is expected to address not only funding issues but controversial administrative features that the monitor says are barriers to a community-based network of services, starting with the eligibility process.

For a decade, BHDDH has used the standardized Supports Intensity Scale (SIS), a lengthy interview process, to determine the intensity of a person’s disability and assign one of five funding levels for services.

Antosh has pushed back against the state’s stated intention to continue using the SIS, saying it needs yet comprehensive review. Despite the re-training of interviewers in 2016, families still report the SIS does not result in the funding necessary for needed services. And they have complained for years that they sometimes felt humiliated and emotionally drained by the SIS interviews.

The state has developed a supplemental questionnaire intended to improve the accuracy of the SIS, but Antosh said very few families report that they have seen it or understand its purpose.

The families of young people applying for adult services for the first time “continue to report being overwhelmed” by the process, which the state has promised to streamline. And families also generally don’t understand how to appeal a funding decision they believe is inadequate for the services their loved one needs, Antosh said. He recommended that intensive training of social caseworkers continue about communicating new policies to families.

Administrative Barriers To Integration

Antosh’s report also outlined the concerns of service providers about some features of the reimbursement rules, including:

• A requirement that they document the time each daytime worker spends with each client in 15-minute increments, a time-consuming and costly process.

• Another rule that dictates staffing ratios for different kinds of activities, which sometimes results in results in group activities in the community instead of individualized experiences.

Antosh reiterated recommendations of a workgroup on administrative barriers that said:

• The ratios should be replaced with reimbursement rates which allow workers to have 1,2, or 3 clients in their care

• Documentation of worker time should be done in three or four-hour units

Antosh said he expects the reviewers will reach conclusions that are similar to the workgroup. He made numerous other detailed recommendations in the 50-page report.

With the consent decree set to expire in 22 months, on June 30, 2024, Antosh said that all of his recommendations must be “fully implemented with urgency,” using boldface for emphasis.

All the state’s reforms eventually must be approved by the Court.

Read the monitor’s August 29 report here.

Read the monitor’s Sept. 1 addendum here.

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.

DiPalma: $184 M DD Wage Settlement In CT Should Guide RI Talks

DiPalma Photo by Anne Peters

By Gina Macris

Will higher wages for workers who help persons with developmental disabilities in neighboring Connecticut and Massachusetts force increased pay for similar workers in Rhode Island?

State Sen. Louis DiPalma says they should; particularly a two-year contract settled just a few days ago in Connecticut that gives frontline workers $16.50 an hour in the fiscal year beginning July 1 and $17.25 in July, 2022.

While leaders of private agencies in Rhode Island that provide services to persons with disabilities have tentatively agreed to a $15.75 reimbursement rate for entry-level caregivers, they did so reluctantly, saying that it’s not competitive enough to help them stabilize or expand their workforce.

And it’s not yet known whether that figure is acceptable to Chief Judge John J. McConnell, Jr. of the U.S. District Court, who has involved himself in workforce issues because they are connected to the state’s compliance with a 2014 civil rights decree requiring the integration of adults with developmental disabilities in their communities.

DiPalma, a strong advocate for those with disabilities and an influential legislator, said in a telephone interview with Developmental Disability News that the $15.75 hourly reimbursement rate the private providers tentatively accepted from the state is “necessary but not sufficient.”

Connecticut’s eleventh-hour settlement with the Service Employees International Union (SEIU) averted a strike of 2,100 group home workers who had planned to walk out June 4.

In addition to the wage hikes, the agreement provides 3-percent raises to those already making more than entry-level pay, as well as a a pool of $30 million over the next two years for enhanced medical and retirement benefits. The entire package will cost a total of $184.1 million, according to a statement from the Connecticut state policy office and department of developmental disability services.

In Massachusetts, personal care attendants who work with adults facing intellectual challenges, as well as with others who need daily assistance, make $16.10 an hour, according to the website of their union, 1199 SEIU East, a different branch of the same overall organization representing the group home workers in Connecticut. Rhode Island routinely loses some of its best developmental disability professionals to Massachusetts, and DiPalma said Connecticut is “not that far.”

The strike threat in Connecticut was “a means to an end,” DiPalma said.

“Never mind how they got there,” he said. The state wouldn’t have put up the $184.1 million in the two-year package unless it valued the workers, DiPalma said.

For the most part, the employees of some three dozen private providers of developmental disability services in Rhode Island are not unionized. Wage talks have involved their employers and state officials and revolve around reimbursement rates to the private agencies, not the wages themselves.

Because of differences among agencies in employee-related overhead costs, like workers’ compensation, the actual wages are not exactly the same as the reimbursement rates negotiated between employers and the state, according to Tina Spears, executive director of the largest provider trade association, the Community Provider Network of Rhode Island (CPNRI)

The most recent CPNRI calculations indicate that the average starting pay for direct care workers is $13.18, but there are other reports that some agencies pay $13.40 or a little higher.

Those organizations paying a little more have transferred revenue from other programs to subsidize services for adults with developmental disabilities, in a pitch to be a as competitive as they can in the midst of a huge worker shortage, DiPalma said. Not all the agencies have multiple sources of income, he said.

Judge McConnell has heard testimony that low pay and high turnover has adversely impacted the workforce that the state relies on to comply with the 2014 civil rights consent decree, which requires adults with developmental disabilities to be integrated in their communities. The state is nearly 1100 workers short of the number it needs to guide community-based services, according to a consultant’s report.

McConnell has ordered the state to set starting wages at $20 by 2024, with any interim raises being competitive with direct care pay in neighboring states.

McConnell has a private conference scheduled today, June 8 with lawyers in the consent decree case.

Judge: RI Must Expand DD Budget Or Risk Olmstead Consent Decree Noncompliance

By Gina Macris

Judge McConnell

Rhode Island will not be able to meet a 2024 deadline for complying with a 7-year-old civil rights agreement unless it begins allocating money now to attract an adequately-paid, skilled workforce to serve adults with developmental disabilities in their communities.

So says Chief Judge John J. McConnell, Jr. of the U.S. District Court in a nine-page order issued March 16 clarifying what it will take to comply with a 2014 consent decree correcting Rhode Island’s violations of the Integration Mandate of the Americans With Disabilities Act (ADA).

Five days ago, on March 11, Governor Daniel McKee submitted a state budget request to the General Assembly that does not propose any rate increase for direct care workers. These workers are employed by the private agencies the state relies on to carry out provisions of the 2014 Olmstead consent decree.

Under the current rates, providers are able to pay front-line workers an average of $13.08 an hour, or $1.58 above the state’s minimum wage of $11.50, McConnell said in the statement, which amounted to a tutorial on the issues affecting compliance.

The $11.50 rate went into effect last October, and McConnell pointed out there are bills pending in the General Assembly for additional raises.

“The functions and responsibilities of staff who provide direct support to adults who have intellectual and developmental disabilities are significantly more challenging than many minimum wage positions,” McConnell said.

In several states the pay of direct support staff is considerably higher than minimum wage, he said. Utah, for example, has set its direct care rate at 72 percent above minimum wage.

He drew a straight line connecting low wages, high turnover, and an inability of the provider agencies to find a well-trained, stable workforce capable of providing an array of services that will enable adults with developmental disabilities to live meaningful lives in their communities in accordance with the ADA’s Integration Mandate.

One in five jobs in private agencies are currently vacant, and agencies report an average annual turnover of about 30 percent, according to a survey by an independent court monitor conducted in February. In addition, 80 percent of adults and families who direct their own programs said they had difficulty finding staff, and 68 percent said they had difficulty retaining staff, according to the monitor.

McConnell’s latest statement underlined an order he issued Jan. 6 which requires the state to raise workers’ wages to $20 an hour by 2024 as part of a comprehensive overhaul of services from center-based group care to one-on-one or one-to-two staffing in the community.

He said the state must collaborate with service providers and advocates in the community to develop a three-year budget strategy for compliance with the consent decree and give him monthly progress reports at the end of April, May, and June.

The judge cited a 2020 report of the state’s own consultants that concluded the provider agencies are financially “fragile and profoundly undercapitalized.”

McConnell also felt it necessary to say that the “entirety of the State” is a party to the consent decree, not merely the state agencies identified in the document.

The McKee administration and the leadership of the House and Senate had no immediate comment on McConnell’s order.

The judge reminded the state that the findings of the U.S. Department of Justice in 2014 cited “multiple concerns” about the state’s failure to comply with the Integration mandate.

Among them were:

• A lack of resources

• Failure of the state’s rate-setting methodology and reimbursement model to promote integrated supported employment and day services

• The inflexibility of the state’s reimbursement model.

McKee’s budget for the fiscal year beginning July 1 includes a proposed $15 million “transformation and transition fund,” but it’s not clear exactly what that money will pay for.

There are five committees already working under the supervision of the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals on proposed administrative reforms.

But McConnell has signaled he wants the planning complete by the end of June and the implementation to begin at the start of the new fiscal year in July.

He also noted that the integration mandated by the consent decree are also required by the Centers for Medicaid and Medicare Services if the state is to continue qualifying for federal Medicaid reimbursement under the Home And Community-Based Services (HCBS) Final Rule. Like the consent decree in Rhode Island, that rule gets its authority from the Olmstead decision of the U.S. Supreme Court, which in 1999 clarified the Integration Mandate of the ADA.

“Rhode Island is seven years into the Consent Decree,” McConnell said. (The eighth year begins April 9.)

“With three years remaining, there is significant work still to be completed,” he said in conclusion.

Click here to read Judge McConnell’s order of March 16.