Judge Extends RI Consent Decree Deadline

By Gina Macris

Judge McConnell

Rhode Island will get more time to comply with a nine-year-old consent decree intended to help adults with developmental disabilities lead meaningful lives, a federal judge said Aug. 1.

Despite major progress, the state will miss the original deadline at the end of June next year.

The new deadline has not yet been set.

After hearing evidence for two hours on the status of compliance efforts, Chief Judge John J. McConnell, Jr. of the U.S. District Court ordered state officials to meet with an independent court monitor to negotiate an “addendum” to the consent decree.

The monitor and a Justice Department lawyer roundly praised the state’s recent $75 million investment in developmental disabilities reform as well as an overall strategy for improving employment and integration in the community for adults with developmental disabilities.

But they said actual implementation, measured by changes in people’s lives, falls far short of the progress needed to reach full compliance in 11 months’ time, by June 30, 2024.

McConnell said that while the state has made “tremendous progress,” it is also “abundantly clear that it will not be in compliance July 1.”

“Because we are able to recognize this year in advance, the parties should get together with the monitor and negotiate an addendum to the consent decree to ensure substantial compliance at the quickest possible time.”

“We could sit and wait until July 1, 2024, and see what happens, but that doesn’t seem most effective in improving people’s lives,” McConnell said.

He also said an addendum does not mean renegotiating the consent decree, which was signed in 2014 by the state and the Justice Department (DOJ). An addendum would define how to reach compliance on a “timetable that was not anticipated,” McConnell said.

He asked the monitor, A. Anthony Antosh, to draw up the initial draft addendum for the state’s review. The next court date has been set for Sept. 28 for a private conference involving Antosh and lawyers for the state and the Justice Department.

McConnell presided over a remote-access public hearing that put the state’s recent efforts in the context of the original ten-year timeline of the consent decree.

Antosh said that state’s efforts during the first six and a half years of the consent decree were “well-intentioned”, but the thinking was “too narrow.”

In addition to chronic underfunding of developmental disabilities services, the bureaucratic system in place made it difficult for providers to support employment opportunities and community activities for their clients.

It was only after state faced a possible contempt finding in court and the prospect of heavy fines in 2021 that it came up with a plan to overhaul the entire system – both the rates it pays for services and the way individuals receive those supports.

That so-called “rate review” was completed several months ago, and in June, the General Assembly put $75-million behind the planned reforms. The state filed 1,357 pages of notes with the court to document its progress.

“I commend the efforts of the state,” Antosh said, “but that said, had the efforts been made four or five years ago, we would be in a different place.”

Both he and a Justice Department lawyer, Nicole Kovite Zeitler, said interviews with those eligible for services and their families indicate they are still confused about what changes are coming and how they will be affected.

Antosh has made it clear that consumers’ perceptions about their quality of life will be a prime measure of compliance with the consent decree.

Many of the changes described in the recent overhaul of the developmental disabilities system exist, so far, only on paper, Zeitler said.

Antosh said he was particularly concerned about the vagueness of a core assessment process that is supposed to lead to individualized, flexible budgets for participants seeking jobs and community activities suited to their interests.

 The new assessment process, with independent facilitators to guide individuals in shaping service plans, has not yet begun to roll out.

Antosh covers the pluses and minuses of the state’s progress in a detailed 49-page report filed with the court about 90 minutes before the Aug. 1 hearing. Read it here.

 Zeitler, the DOJ lawyer, said “We are cautiously optimistic that all the plans will ultimately lead to compliance with consent decree.”

How long it will take remains an open question.

RI DD Officials "Trying To Do The Right Thing," Says Judge In Review of 2014 Olmstead Consent Decree

By Gina Macris

Rhode Island’s efforts to implement a 2014 consent decree to help adults with developmental disabilities become part of their communities won plaudits from a federal judge July 28, althougth some officials indicated there’s still a long way before the changes permeate the system of state services. 

Judge John J. McConnell, Jr. said he is heartened “when a state entity is trying to do the right thing. It’s not the case where the state is acting in any way in bad faith.”

“Compared to about a year ago we are in a very different place,” he said.

In May, 2016, McConnell issued a 8-page order warning the state he would entertain contempt proceedings unless it moved forward with implementation of the consent decree, which at that time had been stalled for two years.

At the latest hearing, July 28, McConnell said there had been “positive movement” in the state’s efforts to carry out the requirements of the consent decree and urged state officials to “keep it up.” 

The judge acknowledged that sweeping changes in the leadership of state agencies responsible for the disabilities programs in recent months had left him feeling “quite nervous” about the state’s ability to comply with his orders, but he said “now it doesn’t feel that way at all.”

McConnell chose a relatively informal setting for the hearing, convening his review not in his courtroom but in the richly paneled library of the Beaux Arts federal building on Kennedy Plaza in Providence, and inviting participants around a conference table to remove their jackets.

A lawyer for the U.S. Department of Justice, Nicole Kovite Zeitler, and an independent court monitor, Charles Moseley, cited advances in the handling of bureaucratic issues that are pre-requisites for a turn-around in the system that will take years to accomplish. The areas they covered included:

• The realignment of social work staff to better oversee changes in the way services are delivered
• Additional steps intended to lay the foundation for an active, multi-faceted quality improvement effort involving the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) and the Office of Rehabilitation Services (ORS)
• Improved communication with service providers, and with the publicThe expanded availability of training and information on the principles of individualized planning and personal choice that are at the heart of the consent decree – and the federal law behind it.

There were, however, signs that, for some individuals who depend on developmental disability services, change has not yet arrived.

For example, Zeitler said that of 22 private agencies participating in a pilot program to encourage job-placements, 42 percent –nearly half - say they can’t take new clients.

Moseley said he “regularly” gets reports from families who say that they have been turned down by service providers they sought out.

Although the pilot project in supported employment is billed as an “incentive” program, participating agencies report privately they operate at a loss for each client they place in a job.

The legislature allocated $6.8 million for supported employment in the fiscal year which ended June 30, but the pilot program did not begin operations until January, and in the first six months it paid out a total of about $122,000 to participating agencies, according to BHDDH calculations obtained by Developmental Disability News.

Rebecca Boss, the BHDDH director, acknowledged there are “challenges” to delivering those supported employment services but did not elaborate. A report from Moseley to the judge submitted the day before the hearing said there have been multiple meetings between state officials and the providers to discuss various factors affecting the supported employment program, including “operational issues that are reported to be impeding the ability of the organizations to meet their placement goals.”

McConnelland the consent decree officials at the table spent considerable time discussing a relatively low employment rate of young adults – the very group most likely to have had the broadest experiences in high school, including school-to work internships. 

The participants acknowledged that the employment rate for that group, 32 percent, was artificially depressed, because the number of individuals in the young adult category has grown dramatically, from 151 to 497, in the last nine months.  It takes time to find the right job, Zeitler said. 

But the monitor said in his latest report to the judge that progress in finding jobs for young adults “has been slow.”  Even if one analyzes only the original 151 young adults and discounts 60 of them who are not receiving BHDDH services, the employment rate is 51 percent, Moseley said in the report.

He recommended that the state contact each of the 60 not receiving services to make sure they know that supports are available if they need them.

Clients recently interviewed by Zeitler and DOJ colleagues said they were sometimes “bored” with their daytime non-work activities, Zeitler reported. The Americans With Disabilities Act (ADA) says persons who receive public supports must have personal choice in deciding what they do with their time, both for work and leisure.

But the way resources are currently invested does not necessarily promote “inclusivity,” noted Boss, saying the department is hoping to do some “rebalancing” of the way money is spent.

The individual choice mandated in the consent decree implies one-to-one or small group staffing, assuming that a few friends want to do something together in the community. But a fairly rigid regulatory structure currently in place doesn’t allow for such staffing unless clients are deemed to have extensive disabilities.  

The Division of Developmental l Disabilities is in the process of rewriting all its regulations to change from a system that assigns funding based on the severity of a disability to one that stresses individualization and personal choice, or“person-centered planning,” in accordance with the ADA and the consent decree.

As Moseley noted, the state must make these changes anyway to comply with the broader federal Medicaid Home and Community Based Rule (HCBS). The federal-state Medicaid program pays for all developmental disability services in Rhode Island.

Like the consent decree, HCBS derives its authority from the 1999 Olmstead decision of the U.S. Supreme Court. The Olmstead decision re-affirmed Title II of the ADA, which emphasizes its primary purpose to integrate those with disabilities into the mainstream of society and respects their individual choices on the degree to which they wish to participate. 

The last time BHDDH attempted regulatory reform along similar lines, in 2015, an internal BHDDH work group came up with recommendations that would have cost tens of millions of dollars. The proposed changes did not move forward.  

In his most recent report to the judge,  Moseley said that the effort to gain greater flexibility over existing funding “is a positive move, but additional steps need to be taken to map out a process for ensuring that funding supports integrated person-centered day services” that meet the standards of the consent decree.

Zeitler said management officials of direct service agencies seem to understand the principles of individualized, or “person-centered” activity plans, but some direct care workers “don’t speak the language.” 

Zeitler suggested that more training is in order.  Although the training is available, tuition-free, Kerri Zanchi, developmental disabilities chief at BHDDH,  indicated there was no “quick fix” to this problem, given the high turnover in the workforce.

Zeitler, meanwhile, praised the way Zanchi has moved around staff to make the most of available personnel, calling the reorganization “very creative.”  

Zanchi has added four workers to the case management unit, reducing caseloads from 205 to 152 per person. Two of the workers came from the unit that determines eligibility for services and two came from a separate group that assesses the support needs of clients once they are found eligible for services. 

Another worker has been tapped to serve in the newly created position of transition coordinator, to serve teenagers and young adults moving from high school to adult services. The Division of Developmental Disabilities has hired a new residential coordinator to address housing options for those who do not live with their families.

An outside quality improvement expert enlisted by Moseley has said in a report that "there is a significant commitment to change" at BHDDH and ORS to ensure high program standards are implemented across the board. 

"But the staff available to implement change are stretched very thin," wrote Gail Grossman in a report that is part of Moseley's latest filing with the court. Grossman continued: "Serious consideration needs to be given to the need for additional staff resources if DDD (the Division of Developmental Disabilities) and BHDDH are going to develop, manage and oversee a strong QMIS (Quality Management and Improvement System) structure."

BHDDH has a unit entitled quality improvement, but its scope is limited to investigations of neglect or abuse of vulnerable individuals.

Click here for the monitor's latest report to the judge.

Related articles: Judge Willing To Intervene In RI Budget Impasse

Supported Employment Program Falls Short Of Initial Goals in RI

RI Clears Backlog in Applications For Adult Developmental Disability Services

By Gina Macris 

(This article has been updated.)

Rhode Island’s Division of Developmental Disabilities has cleared a backlog of more than 200 applications for adult services, and eligibility workers are now adhering to a 30-day timeline for screening applications, in accordance with a schedule submitted to the U.S. District Court. 

In the spring of this year, the U.S. Department of Justice and an independent court monitor in a federal consent decree case expressed concern that extensive delays in reviewing applications for adult developmental disability services has prevented teenagers and young adults from receiving supports to which they are entitled, in violation of the Americans With Disabilities Act. The backlog had persisted for years.

Over the summer, in response to an order issued by Judge John J. McConnell, Jr., officials of the Executive Office of Human Services(EOHHS) took the lead in streamlining the screening process for applications. 

Jennifer Wood, Deputy Secretary of Health and Human Services, promised the backlog would be cleared by Sept. 30. 

On that date, all 224 applications that had been pending for at least the previous two months had been cleared by the developmental disabilities eligibility unit, part of the state Department of Behavioral Healthcare, Developmental Disabilities, and Hospitals (BHDDH),  according to a spokeswoman for the Executive Office of Health and Human Services (EOHHS). 

Of the 224 applicants who had been waiting for a decision on Aug.1, 106 were found eligible, 31 were deemed ineligible, and the remaining individuals were notified they either needed to submit additional information or schedule a face-to-face evaluation, according to the EOHHS spokeswoman, Sophie O’Connell. 

On Oct. 14, there were 35 pending applications, O’Connell said, and eligibility workers are now adhering to the 30-day time limit for screening applications, in keeping with a work plan submitted to the court over the summer. 

Individuals with intellectual or developmental disabilities are eligible for adult services funded by BHDDH at the age of 18, according to state law.                                                         

EOHHS released the following details about the timeline for deciding eligibility: 

• When the eligibility unit receives an application, it sends a letter of confirmation to the family/applicant, stating that it will be reviewed within 30 days. The timeline for decision making is shared with the applicant as well as contact information for any questions. 

• All applications are screened and reviewed within 30 days. Either they are decided in that period or held for additional information. 

• All applicants whose applications are held for additional information will be sent a letter identifying what information is needed. The applicants and their families will have 60 days to submit missing information. 

• If the additional information is not submitted within 60 days, the application will be withdrawn and the individual can reapply. 

O’Connell said the withdrawal will prevent incomplete applications from sitting for extended periods of time, in some cases years, waiting for documentation, as had been the case in some instances in the past. 

 (The original version of this article said in error that 137 applications had been approved.) 

RI's Wood Confident that DD Agency Can Clear Backlog of Applications by September's End

By Gina Macris  

A backlog of about 230 Rhode Islanders waiting to hear whether they are eligible for adult developmental disability services should be eliminated by the end of September, according to Jennifer Wood, Deputy Director of Health and Human Services. 

She commented in a telephone interview July 13, elaborating on information previously released about the eligibility waiting list. 

“If at the end of the summer, the needle isn’t moving, we will recalibrate,” she said. If additional staff are needed, they will be added, Wood said. 

There are three social workers, a supervisor, and support staff in the eligibility unit of the Division of Disabilities in the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH). 

“We’re taking a lot of extraneous requirements out of the (application) review process,” Wood said, expanding on previous statements made by the state to the U.S. District Court as part of the requirements of a judge’s order. 

Instead of the eligibility workers tracking down medical records and the like from their original sources, they will first ask families to provide them. Families are often the best record keepers, Wood said. 

Rather than taking valuable time to write “referral narratives” on applicants to give to prospective service providers, the providers will get the applicants’ actual records, as long as the applicants or their parents sign the required release forms, Wood said. 

The providers will need to see those records anyway to put together services for new clients, she said. 

The eligibility staff will be able to dedicate their time to the pending applications during the summer because their other duties are at a minimum at this time of year, Wood said. 

For example, they don’t have to attend annual meetings for individual teenagers who are special education students planning a transition to adult life, she said. Those meetings usually are held during the academic year. 

Elements of an efficiency exercise undertaken in the eligibility unit during the month of June were included in a 16-page communication plan submitted to Judge John J. McConnell, Jr. on July 1. 

McConnell has set deadlines during July and August for numerous tasks intended to move the state toward compliance with a 2014 consent decree intended to correct violations of the Americans With  Disabilities Act. (Click here for related articles) 

Judge Orders RI to Fund Disabilities Reform; State Faces Possible Contempt, Fines

By Gina Macris

U.S. District Court Judge John J. McConnell Jr. today (May 18) ordered the state of Rhode Island to appropriate the money necessary to fund the so-called “sheltered workshop” consent decree. The judge also set short-term deadlines for a series of incremental steps needed to begin changes in the developmental disability system.

 In the case of any missed deadlines or other violations of the order, either the court monitor in the case or the federal government may request a show-cause hearing to determine whether the state should be held in contempt.

 If the Court finds Rhode Island in contempt, the state will pay into a Consent Decree Compliance Fund at the rate of $5,000 a day for each day it is remains out of compliance and $100 a day for each person whose integrated day services are delayed or interrupted by a particular violation. The fund is capped at $1 million a year.

 The judge did not spell out how much the state must budget to fund the consent decree.

 The order comes after an April evidentiary hearing which showed the state had made little progress in gearing up for system-wide changes needed to offer job-seeking services and other community supports for adults with intellectual and developmental disabilities who want them.

 Between 2009 and 2011, the state budget for developmental disabilities sustained an overall cut of about 20 percent and has not yet recovered. Since 2013, expanding caseloads have continuously outpaced increased appropriations, leaving a system of private service providers that operate at a loss.

 McConnell’s order largely follows recommendations of the U.S. Department of Justice, although he reserved for himself the right to decide whether the state must pay into the compliance fund.                                                                                                         

The DOJ would have allowed the court monitor to make the determination, arguing that a contempt finding shouldn’t be needed to trigger payments to the fund.

 In his order, McConnell disagreed on that point.

 He also responded to arguments made by the state that the series of deadlines and other provisions of the proposal originally made by the DOJ “contains ambiguous terms and mandates that are not defined.”

 McConnell’s order says that If the state believes any term “is ambiguous or any mandate ill defined,” it must immediately seek clarification with the DOJ and the court monitor. If the state is still not satisfied, it must promptly ask the court for a hearing on the matter, McConnell said.

 Governor Gina Raimondo’s budget proposal for the remainder of the current fiscal year and the next one would put an additional $24.1 million into the network of private agencies that provide most of the services to adults with intellectual and developmental disabilities.

However, a Senate fiscal report raises doubts that projected revenue and expenses in the budget of the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals will balance out. In question is a projected $19.3 million in savings from a reduction in group home costs that depends on voluntary moves by residents into private homes with families throughout the state. 

Click here for Judge McConnell's order

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.”

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.”