RI Supported Employment Services Hampered By Lack of Trained Workers, High Caregiver Turnover

By Gina Macris

About 60 percent of all those who start training at Rhode Island College to provide supported employment services to adults with developmental disabilities drop out of the certificate program,  a factor that threatens reform efforts embodied in two federal civil rights agreements.

The drop-out rate in the training program at RIC’s Sherlock Center on Disabilities underlines a shortage of direct care workers in general and in particular a lack of staff qualified to meet the demand from adults with developmental disabilities for employment-related services and to satisfy the requirements of a 2014 federal consent decree and a companion settlement a year earlier.

The specialized training at the Sherlock Center includes classes and field experience in the nuances of supported employment services, from the time an individual starts looking for a job to on-the-job assistance, long-term career planning, and building good relationships with the business community.

The Sherlock Center is under contract with the state to lead the way in educating those who work with adults having developmental disabilities in the best professional practices, consistent with the principles of the consent decree, which puts individuals’ needs and personal preferences at the center of the services they receive.

Workers must successfully complete a course like the Sherlock Center’s before the state will allow private service providers to assign them to help job-seekers find employment that suits them and the businesses that hire them. The Sherlock Center offers its training tuition-free to those who plan to work in one of two pilot supported employment programs;  one funded by the Rhode Island Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH),  and another run by the Office of Rehabilitation Services in the Department of Human Services.

The topic of supported employment, primarily the BHDDH program, dominated the discussion at the monthly meeting of the Employment First Task Force Oct. 10. The Task Force is a creation of the 2014 consent decree, which requires Rhode Island to shift from sheltered workshops and segregated day programs to inclusive day services, in accordance with the 1999 Olmstead decision of the U.S. Supreme Court. The decision re-affirmed the integration mandate of the Americans With Disabilities Act.

Vicki Ferrarra                   photo by Anne Peters 

The task force includes representatives of individuals with developmental disabilities, their families, and various community organizations with a stake in the developmental disability service system.  

Vicki Ferrara, who represented the Rhode Island Association of People Supporting Employment First (RI APSE), a professional organization, said there was a 40 percent completion rate in the Sherlock Center training program.

She works as the Sherlock Center’s coordinator for integrated employment.  The group she represented at the meeting is part of a national organization involved in setting professional-level standards for various aspects of supported employment services.

Ferrarra said some direct care workers complete the supported employment training and then leave the field of developmental disability services entirely, often because of low wages.  

Others drop out of the course because they find the work too challenging, she said.

Still others cannot complete the classes or field work because the shortage of direct care workers is so acute that their employers call them in to cover vacant shifts on the job for basic health and safety reasons.

Ferrara said the state does not pay for substitutes while the regular caregivers are in class.

She said the direct care workforce must be stabilized before the state gains enough qualified job coaches,  job developers and supported employment specialists.

Many new hires leave when they realize the job of providing direct support to adults with developmental disabilities is complicated and carries many responsibilities. The average wages are estimated at about $11.50 an hour, including a pay bump of 36 cents an hour that is being processed by the workers’ employers this month. 

The average turnover ranges from 60 percent in the first six months to about 30 percent over 12 months, according to figures presented to the General Assembly earlier this year.

Ferrarra said workers should have at least six months’ experience, learning the basics of direct care, before they are sent to train for specialized credentials. In at least some parts of the service system, new workers get acclimated by working under supervision with just a few specific clients, learning their needs and preferences and strategies for cope with any challenges they might present.

But Ferrara said some workers arrive at the Sherlock Center for specialized employment-related training during their first week on the job.

In September, an official of the supported employment program run by BHDDH reported that the enrollment of individuals seeking jobs was 92 short of the available spaces, a maximum of 517. (Click here for related article.) 

On Oct. 10, Howard Cohen, a member of the Task Force who is the father of a man with developmental disabilities, said a lack of qualified staff has come up repeatedly when he has participated in other discussions about supported employment.

Ferrara provided information on the three-part training program at the Sherlock Center as the Employment First Task Force was considering recommendations it planned to make to the state about the future of supported employment services.  

Instead, questions arose on details that needed clarification, like how the clients for supported employment services have been selected, and how families that hire their own workers through a fiscal intermediary to support their loved ones can get broader access to these services. 

Brian Gosselin, Chief Strategy Officer for the state Executive Office Of Human Services, urged the task force to put its questions in writing and submit them to the state. Gosselin was involved in the design of the BHDDH supported employment program.  That pilot will complete its first program year at the end of December and is under evaluation. By year’s end, the ORS program also will be well into the second half of its initial 12-month run.

Two Pilot Programs, Two Approaches to Supported Employment, Aired at RI DD Task Force Meeting

By Gina Macris

(This article (been corrected.)

Between January and mid-August, about one in four Rhode Islanders with developmental disabilities who were enrolled in a new supported employment program landed jobs, with help from private service agencies funded through the state Division of Developmental Disabilities (DDD).

But there are signs of strain on the ability of these agencies to train the workers they need to continue to deliver results over the long haul.

 In the meantime, the Office of Rehabilitation Services (ORS) has started a much smaller pilot project , now in its second quarter of operation.

The two pilots take different approaches to funding employment-related supports for adults with developmental disabilities.

The DDD program adopts a fee-for service reimbursement model – based on the severity of a client’s disability - and a complicated billing mechanism that is similar to the one set up six years ago by the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) for funding all developmental disability payments to private providers.

There is no provision for funding up front to support agencies’ costs for training workers to provide employment-related services.

The ORS project offers a flat rate of $7,000 per client, with $1750 up front so provider agencies can train and assemble a team of employment specialists. Providers are eligible for two additional quarterly payments of $1750 as long as they document the progress the clients are making.  A final payment  of  $1750 is awarded at the end of a year’s time only if the client has landed a job.

According to a recent report to a federal court monitor, state officials are evaluating both the ORS and DDD approaches to determine “what aspects of each model work for providers, what challenges exist, and how ongoing efforts of the two agencies can be coordinated.”

Tracey Cunningham and Joseph Murphy

Joseph Murphy, an administrator at ORS in the Department of Human Services, and Tracey Cunningham, Chief Employment Specialist in the developmental disabilities division at BHDDH, gave status reports on their respective programs at the monthly meeting of the Employment First Task Force Sept. 12.  

Cunningham said that between January and mid-August, the DDD program found jobs for 116 of a total of 425 adults with developmental disabilities who were enrolled. Nine others found jobs that didn’t work out, Cunningham said, and they are looking for better matches.

The program could take on an additional 92 clients, up to a maximum of 517, according to figures provided by Cunningham. However, service providers are having trouble lining up the trained staff to expand their rosters and want to focus instead on doing a good job with the clients they already have, Cunningham said.

Claire Rosenbaum, Adult Services Coordinator for the Sherlock Center on Disabilities at Rhode Island College, said one training course was cancelled recently for lack of enrollment. The Sherlock Center has a contract with the state to provide the needed training tuition-free.

In addition, the “self-directed” families, those who manage services independently for loved ones, are having a difficult time finding properly trained job developers and job coaches, Rosenbaum said. 

Cunningham said about 90 percent of “self-directed” families who seek supported employment services purchase them from private agencies.  But Rosenbaum said families are having difficulty identifying agencies able to help them.

Cunningham said three agencies are accepting clients from “self-directed” families:  Goodwill Industries, Work, Inc., and a new program called Kaleidoscope.

Nicole Kovite Zeitler

Nicole Kovite Zeitler, a lawyer for the U.S. Department of Justice who monitors supported employment in conjunction with a 2014 consent decree enforcing the Americans With Disabilities Act (ADA), asked what was driving the providers’ inability to expand.

 Low salaries are the primary reason, said Donna Martin, executive director of the Community Provider Network of Rhode Island, a trade association representing about two thirds of the private agencies providing services in Rhode Island.

She said aging baby boomers also are creating an increased demand for direct care workers. Turnover is high – about 35 percent - and one in six jobs goes vacant in the developmental disability system, she said.

The General Assembly this year enacted the second consecutive raise for direct care workers. (Read related article here.)

But the increase, an estimated 42 cents an hour before taxes, is not expected to make a significant difference in the existing subsistence-level wages. Nor will it be any easier for developmental disability agencies to hire or keep new workers.

Meanwhile, the funding for the DDD supported employment program has been greatly under-utilized, even while the developmental disability service agencies have struggled to hire and train enough workers. (Read related article here.)                                 

The DDD program provides increased allowances for  job-seekers, based on the degree to which they lack independence,  but  most of the expenditures are set-aside for one-time performance bonuses to the agencies when:

•  A job coach or job developer completes training
•  A client gets hired
•  A client remains employed for 90 days
•  A client remains employed for 180 days.

Agencies receive $810 for each worker who has completed training. The remainder of the bonuses are arranged on a sliding scale, depending on the severity of the client’s disability, with the largest payments resulting from placement and retention milestones for those with the most complex needs.

Excluding any reimbursements for worker training, which were not part of the original design of the DDD program, the average maximum one-time reimbursement was initially projected to be $9,700 for young adults and $15,757 for older adults – those who left high school before 2013. Any updated figures were not immediately available.

The pilot operated by the state Office of Rehabilitation Services (ORS)  works with seven developmental disability service agencies to help a total of 49 clients find jobs. Five have had success so far, Joseph Murphy, program administrator, told task force members.

The ORS program, which receives technical assistance from Salve Regina University in Newport,  is now in the second quarter of the program year, while DDD program is in the third quarter. 

The ORS program considers a successful placement to be a minimum of ten hours a week in competitive, integrated employment in the community, although Murphy said Sept. 14 that it accepts clients no matter how many hours' work they seek. The ORS program offers a $1,000 bonus for job placements that exceed 20 hours a week and last at least six months. In the DDD program, a successful placement may involve fewer than 10 hours' work a week.

Victoria Thomas

The employment goal of the consent decree is an average of 20 hours a week of work at minimum wage or higher, although DOJ lawyer Victoria Thomas said there are no hourly employment requirements in the ADA.

“It just says people with developmental disabilities should have the option of integrated services,” she said.

The consent decree resulted from findings of the DOJ in 2014 that the state’s developmental disability services  over-relied on segregated sheltered workshops paying sub-minimum wages and non-work programs resembling day care.  As part of a system-wide overhaul, the state must support increasing numbers of adults with developmental disabilities in competitive employment in the community through Jan. 1, 2024.

The Employment First Task Force was created by the consent decree to serve as a bridge between state government and the community.

All photos by Anne Peters

This article has been corrected to reflect the fact that the up-front payment to providers in the ORS supported employment program is $1,750, one quarter of the total $7,000 allocation per client. In a clarification, Joseph Murphy, the program administrator, said it accepts clients no matter how many hours a week they seek competitive employment, even though a placement must be for at least ten hours a week to be considered successful for the purposes of the program.

RI House Finance Chairman Asks Whether DD Services Really Need Money; Gets Emphatic Yes in Reply

Maureen Gaynor uses assistive technology to testify before the Rhode Island House Finance Committee May 26. She says people with disabilities want the same thing everyone else does; a job, a role in their communities, and purpose in their lives. To her left is Lisa Rafferty, executive director of Bridges, a disability service provider.

By Gina Macris

Rhode Island’s developmental disability agency needs more revenue in the next fiscal year because it will not come close to saving a target of $16.2 million in group home expenses, the agency’s director, Maria Montanaro, told the House Finance Committee in a hearing May 26.

Montanaro emphasized that after eight years of cost-cutting in the developmental disability budget, the state now needs to add revenue to ensure that Rhode Island residents who live with intellectual challenges get the Medicaid-funded services to which they are entitled by law.

The Committee chairman, Rep Marvin L. Abney, (D-Newport), wasn’t necessarily convinced by Montanaro’s testimony, asking rhetorically, “Is money really the problem?” 

ABNEY                                          Image by Capitol TV

“We’re going on and on and on and on,” Abney said. “I’ll leave you with this thought. It’s not a question, but we are concerned,  is money really the problem? When we’re talking about efficiencies to the system, is money always the answer to that? You don’t need to respond, but just think of that as a director,” he said.

Montanaro did not reply, but other witnesses did say a lack of money is a key factor in ongoing federal court oversight of the state’s compliance with a two-year-old consent degree in which Rhode Island agreed to bring its disabilities services in line with the Americans With Disabilities At (ADA).

The agreement, with the U.S. Department of Justice, requires the state to enable more persons with disabilities to work in regular jobs, rather than in “sheltered workshops.” The decree also requires the state to help persons with disabilities participate in other community-based activities.

In an order issued May 18, Judge John J. McConnell, Jr. laid out 22 short-term deadlines the state must meet. Missing even one of them could trigger a contempt of court hearing. If the state is found in contempt, the judge would require the state to pay a minimum of $1,000 a day for violations of the consent decree, or as much as $1 million a year.  

The first requirement in McConnell’s order is that “the State will appropriate the additional money contained in the Governor’s budget for fiscal 2017 in order to fund compliance with the Consent Decree.”

The subject of the House Finance Committee’s hearing was Governor Gina Raimondo’s proposed budget amendments for the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH),  for 2016-2017 fiscal year, which begins July 1.

In all, Raimondo has requested $18.7 million in added revenue for developmental disabilities, offset by an accounting shift of $1.8 million in home health aide services from BHDDH to the Executive Office of Health and Human Services.

Also on the table is a proposal for about $6.8 million in additional appropriations in the current fiscal year to address a current budget deficit in developmental disabilities. 

If the General Assembly approves the supplemental appropriation, the bottom line in BHDDH’s Division of Developmental Disabilities would increase from $230.9 million to $237.7 million before June 30. Raimondo’s request for an additional $16.9 million in the coming fiscal year would push the overall disabilities budget up to $254.6 million, with about half that amount coming from state coffers. 

In fiscal 2016-2017, Raimondo seeks to make up $10.2 million of the $16.2 million she originally envisioned saving in reduced group home costs.

The governor also wants an additional $9.2 million in funding to raise salaries for staff who work with adults with intellectual challenges, or $4.1 million more than she asked for in February. 

In addition:

• $180,000 would be set aside for an ombudsperson to protect the rights of persons with developmental disabilities

• ·4.4 million would be restored to the BHDDH budget to prevent the inadvertent loss of professional services like occupational and physical therapy for some persons with developmental disabilities.

All the money comes from Medicaid, with a roughly dollar-for-dollar match in federal and state spending.

Montanaro, the BHDDH director, said adequate funding of developmental disabilities in the next budget would prevent BHDDH from running a deficit every year.

The developmental disability caseload, 4,000 to 4200 annually, also should be included in calculations of the state’s semi-annual Revenue and Caseload Estimating Conference to prevent unexpected surprises in the budget, she said. 

Montanaro                                                               Image by Capitol TV

The twice-yearly conference is a forum for top fiscal advisors to the Governor, the House and the Senate to reach consensus on the state’s revenues and Medicaid caseload expenses for the coming budget year.  

Montanaro said the $9.1 million in raises for direct care workers are necessary to satisfy the consent decree.

Without being able to offer higher pay, the private agencies that provide most of the direct services won’t be able to re-direct their efforts toward supporting their clients in jobs as the consent decree requires, Montanaro explained.

Workers make an average of about $11.50 an hour, often less than the clients they support in jobs in fast food restaurants, according to testimony at the hearing.

BHDDH originally counted on achieving $16.2 million in savings in the next fiscal year by convincing hundreds of group home residents to move into less expensive shared living arrangements with individual families, Montanaro said.

However, that effort has encountered resistance by individuals and families who find safety and security in group home living, she said.

Since BHDDH began what Montanaro described as a “full court press” on shared living at the beginning of this year, 10 group home residents have moved into private homes with host families, according to BHDDH statistics.

There are now 288 adults with developmental disabilities in shared living – an option that has been available for a decade in Rhode Island – and about 1300 persons living in group homes in Rhode Island.

Tobon                                                           Image by Capitol TV 

When Montanaro originally testified in January about the plan to shift to shared living, it was in the context of closing a projected $6 million deficit in the current fiscal year.

Recalling that testimony, Rep. Carlos E. Tobon, (D-Pawtucket), a Finance Committee member, said he had been “really concerned” about the timetable.

“You had to sit over there and pretty much, not  convince us, but tell us that this is what you were going to do,” Tobon said. “What was your confidence in actually achieving that?”

“I think I was very clear with the committee that it was a very aggressive approach,” Montanaro replied.

“But the problem, Representative, that I want you to understand, is that we are mandated by (state) law to come up with a corrective action plan” to close a budget deficit, she said.

The choice was either to continue the eight-year pattern of cutting benefits or eligibility, while the federal court watched “the crumbling of that system,” Montanaro said, or to try to get savings by encouraging persons with disabilities to move into more integrated living arrangements.

Montanaro described it as a “Sophie’s Choice,” a dramatic allusion to a forced decision being forced to decide between two terrible options.

 “We knew we might have to come back and tell you our actual experience with that,” she said alluding to the fact that the short-term shared living effort has fallen far short of the goal.

 A gradual shift toward shared living is in keeping with a broad, long-range federal mandate to desegregate services for individuals with a variety of disabilities, but it does not address the Rhode Island consent decree, Montanaro said.

 
In the past several months, as the federal court watched BHDDH spending nearly all its efforts to try to save more money instead of working on the employment requirements of the consent decree, Montanaro said, the judge and the court monitor in the case became “very worried.”

The monitor, Charles Moseley, has said that timing is critical.

Unless the state meets certain benchmarks now, Moseley has said in reports to the court, it will not be able to fulfill the long-range requirements of the consent decree, which calls for a ten-year, system-wide shift from segregated to integrated day time supports for adults with developmental disabilities to comply with the ADA. The decree, signed April 8, 2014, expires Jan. 1, 2024. 

Montanaro said that concerns of the monitor and the judge over the state’s emphasis on cost-cutting instead of the consent decree requirements prompted a recent court order that spells out conditions under which Rhode Island could be fined as much as $1 million this year for contempt. 

In her testimony before the House Finance Committee, Montanaro drove home her point.

“The last thing I’ll say about it is that we really can’t afford to direct all of our departmental activity toward an effort that isn’t actually the effort that the consent decree is obligating us to pay the most close attention to, which is the employment issue,” Montanaro said.

“Judge McConnell and the court monitor want to see the state of Rhode Island make the necessary financial investments in transforming the system, and you can’t transform everything at once,” she said, alluding to Moseley’s concerns about timing.

Montanaro continued to explain, but that’s when Abney, the committee chairman, interrupted, asking his rhetorical question: “Is money really the problem?” 

Later in a hearing that lasted nearly two hours, Tom Kane, CEO of a private service agency, and Kevin Nerney, associate director of the Rhode Island Developmental Disabilities Council, each told Abney that “it is about the money.”

Nerney said, “Whether I think it’s about money, or whether anyone else thinks it’s about money, there’s a federal court judge that thinks it’s about money, and the Department of Justice does, as well.”

Kane, CEO of AccessPoint RI, said “The reason the DOJ is here is a money problem,” he said. “We have jobs available for people (with disabilities) waiting to work,” he said, but providers of developmental disability services can’t hire the support staff “to make that happen,” he said.

Of 77 job applicants at AccessPoint RI during the month of April, 35 refused a job offer because of the low pay, Kane said. “They tell me they can make more sitting home collecting” unemployment benefits, he said.

Serpa                                                  Image by RI Capitol TV 

As he has testified at previous State House hearings on the developmental disabilities budget, Kane said private service providers operate at an average loss of about $5,000 a year for each person they employ. 

Rep. Patricia A. Serpa, (D-West Warwick, Coventry and Warwick), asked whether executives of developmental disability agencies have received raises while their workers have been paid low wages in recent years.

Kane said he gave all AccessPoint RI employees a 3 percent raise in January, the first time since 2006. At the start of the 2011-2012 fiscal year, after the General Assembly voted to cut $24 million from the developmental disabilities budget, everyone took a 7.5 percent pay cut, he said.

Donna Martin, executive director of the Community Provider Network of Rhode Island, CPNRI, said all the member agencies that cut pay that year started at the top.

A review of IRS reports from organizations exempt from taxes shows that executives of developmental disability agencies with budgets less than $5 million make 25 percent less than those of other non-profit agencies in Rhode Island, Martin said.

In developmental disability agencies with budgets greater than $5 million, the executives make 30 percent less than those of other non-profit organizations in the state, she said.

Kane, meanwhile, asked the committee to think of the governor’s budget proposal as a “jobs request.”

KanE                                                    ImAge by Capitol TV 

Kane submitted a copy of research done by the University of Massachusetts Amherst which indicates that every million dollars invested in disability services in Rhode Island creates a total of 25 jobs. Based on that research, Kane said later, the $9 million Raimondo has requested to raise pay for direct care workers would translate into a total of 225 jobs.

Kane also said the state should “braid” funding from BHDDH with the Office of Rehabilitation Services of the state Department of Human Services (ORS) to fund “employment teams” that would be more effective than the two agencies working separately to try to do the same thing.

That idea came out of recent discussions between state officials and private agencies about a system-wide redesign of services, Kane said.

Bob Cooper, executive secretary of the Governor’s Commission on Disabilities, said he would add the state Department of Labor and Training (DLT) as another “braid” in Kane’s analogy.

Federal rehabilitation dollars channeled through DLT reimburse the state 78 cents for every dollar the state spends; a better deal than the 50-50 match from the Medicaid program, he said.

The federally-funded Disability Employment Initiative, a workforce development demonstration grant run by DLT, “was making a difference” before the grant ended and the program shut down March 30, Cooper said.

If the state is to comply with the consent decree, disability-related job supports involving BHDDH and ORS must be merged with DLT, the state’s primary economic development agency, Cooper said.

Allegations of Service Gaps, Lack of Job Supports, Challenge RI Compliance With Consent Decree

By Gina Macris 

this article has been updated

Rhode Island has not expanded job development services to people with developmental disabilities as required by a 2014 federal consent decree, according to a key professional at the Sherlock Center on Disabilities at Rhode Island College. 

Claire Rosenbaum, the adult services coordinator at the Sherlock Center, filed a statement in U.S. District Court April 6 that says the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) does not include job development as part of its standard package of services. Instead, the department expects them to shift money from other funding categories to do that.
 
Rosenbaum’s statement helps lay the groundwork for a challenge to a claim by the state that it is in “substantial compliance” with the decree.  Judge John J. McConnell, Jr. is to hear evidence in the case Friday, April 8 at 10 a.m. 
 
Separate statements about delays and inadequacies in services, particularly for young people eligible for transitional supports, were filed earlier this week by the Rhode Island Disability Law Center and by Tammy Russo, the mother of a 23-year-old man who receives BHDDH-funded services. 
 
Rosenbaum’s statement concurred that “one of the greatest problems is the gap in services experienced by many individuals with disabilities as they transition from youth services to adult services.”  
 
“I know individuals who have experienced a gap in disability services, spanning anywhere from a few weeks to a few months to a year or more,” she said.
 
Often, because many providers are refusing new cases, the only option is so-called “self-directed supports”, in which individuals or their families manage specific BHDDH allocations, organizing services and hiring their own direct service workers, Rosenbaum said.
 
Rosenbaum, who is widely respected in the developmental disability community, has an adult daughter who receives BHDDH-funded services, and her job puts her in touch with about 250 adults with disabilities and their families.
 
She said the lack of openings for new clients in the direct service system makes it difficult for individuals to get job development services. 
 
Unlike BHDDH, the Office of Rehabilitation Services of the state Department of Human Services provides funding to direct service agencies for job development services.  However, it pays a flat rate for each job placement, no matter how extensive the needs of the client. Consequently, the developers tend to work with less challenging candidates for employment,  Rosenbaum said.

Direct ORS employment services tend to be limited to job assessments which many clients find to be “excessive and not beneficial to finding employment,” she said.

In another statement filed with the court, Anne M. Mulready, supervising attorney of the Disability Law Center, said Rhode Island law makes youth with disabilities eligible for adult services once they reach 18, but clients say BHDDH does not process their applications until they approach the age of 21.

Mulready currently represents two 19 year-old clients with complex needs whose families each have been waiting about a year for word on eligibility from BHDDH.

“It will take a significant amount of time to plan for and locate appropriate services for these clients,” she said. “Although they are currently in school, BHDDH participation in planning and coordination needs to be occurring now, so that these individuals will not experience gaps in services when they exit high school,” she said in the statement.

In her statement, Russo said she waited two years for BHDDH to find her son, Joey, eligible for services. She searched for five months to find a service provider, because seven of the ten she contacted were not accepting new clients.

Then, BHDDH delayed the start of services until a month after her son’s 21st birthday, which was Jan. 20, 2014, Russo said.  

Because her son’s agency was unable to organize a program of community-based supports for Joey, Russo did it herself, putting together a schedule that included exercise at the YMCA, education at the library with workbooks and supplies she provided, as well as bowling and volunteer experiences she arranged through people who knew Joey at school or in the community.

In effect, Russo served as the architect of the “person-centered planning” now required under terms of the consent decree. She said support staff have told her that their employer used the plan she organized for Joey as a model for helping other clients.

Rosenbaum, meanwhile, said that another “persistent problem” is inaccurate assessments of individuals’ needs and correspondingly inadequate allocations of funding.
 
“I know individuals who have had their (funding) lowered following a reassessment,” she said, despite the fact that the answers were very similar to the original assessment.
 
“Furthermore, I have heard complaints that some interviewers are not recording the respondents’ answers as given and/or are challenging those responses” during the assessment interviews, Rosenbaum said.  

Court to Hear Evidence Friday on RI Compliance with Olmstead Decree

By Gina Macris

The state of Rhode Island says it is in “substantial compliance” with a 2014 consent decree  mandating a decade-long transformation of services for people with developmental disabilities to conform with the Americans With Disabilities Act.

That assertion, made in a compliance report filed April 1 in U.S. District Court, will face close scrutiny in an evidentiary hearing scheduled for April 8 before Judge John J. McConnell, Jr.

The judge also has in hand a recent report from the court monitor in the case, Charles Moseley, that expresses doubts about the state’s ability to meet employment targets in the decree or sustain them over time. The decree remains in effect until Jan 1, 2024.

Other filings submitted this week say the state developmental disabilities agency delays services until young people reach the age of 21 – or later – in violation of state law.

One of the statements also says there is a dearth of job development services available to individuals with disabilities, because the state does not fund these supports. Instead, the state expects service providers to shift money from other funding categories to pay for job development.

In a joint motion filed March 1, Moseley and lawyers for both the state and the U.S. Department of Justice identified three issues that could stand in the way of full compliance: a lack funding, too few placements in community-based employment and other integrated activities, and insufficient leadership necessary to fulfill the requirements of the consent decree.

A month later, the state’s report says it has:  

•   Put the necessary interdepartmental leadership in place, at an annual cost of $591,244.

•   Exceeded current targets for supported employment.

•  Has remained “fully committed to providing sufficient funding to effectuate the goals and targets in the consent decree.” The report cites millions of dollars spent since 2014 and proposed by Governor Raimondo in budgets submitted for General Assembly approval for the remainder of this fiscal year and for the next year.

The state identified more than 3,000 adults in segregated programs and secondary-school special education students who are currently covered by the decree.

In terms of employment goals, the decree requires relatively modest targets, starting with perhaps 150 new jobs a year, depending on how many of the job seekers are eligible high school students in a particular graduating class.

At its heart, the agreement requires the state to fundamentally transform its approach to daytime services for adults with developmental disabilities, and to show exactly where it is putting its money. Most of the population affected by the consent decree has worked in sheltered workshops or stayed in segregated day programs in violation of the 1999 Olmstead decision of the U.S. Supreme Court, which affirmed the right of people with disabilities live and work in their communities under Title II of the ADA.  

Among the key budget items the state cited in its April 1 report is a proposed $5 million increase for the wages of private agency staff during the next fiscal year; it would hike workers’ pay by about 45 cents an hour.

The “Enhanced Payments Direct Care Staff” would provide financial incentives to providers who commit to achieve targets for placing people with developmental disabilities in jobs according to timelines that satisfy the consent decree, according to the state’s report. 

The labor force working directly with people who have intellectual challenges makes an average of about $11.55 an hour, according to a spokeswoman for the Community Provider Network of Rhode Island, which represents 23 private agencies that provide most of the services in Rhode Island.

Agencies operate at a loss for each worker they employ, because the state does not reimburse them for the full cost of employer-related taxes and other benefits, according to the spokeswoman, Donna Martin, who was interviewed about Governor Gina Raimondo’s budget proposal in February.  The $5 million proposal does not contain a provision for employer-related costs.

DD System Under Financial Strain

BHDDH director Maria Montanaro, meanwhile, has acknowledged that past cuts in reimbursement rates have left the private provider system “fragile,” according to a Providence Journal report on her testimony before the House Finance Committee in early January. 

Providers report that the cuts have forced them to reduce wages, resulting in lower quality applicants and high turnover.

In a court order spelling out the parameters for the April 1 report, McConnell asked for evidence that the state is implementing performance-based contracts for community services, in conjunction with a “flexible reimbursement model” that includes incentives to service providers for placing clients in jobs. 

The state’s report does not mention a flexible reimbursement model.

The consent decree requires that the state “ensure that its reimbursement model for day activity services is sufficiently flexible to allow providers to be reimbursed for costs” directly related to supporting integrated employment, including those that are carried out “when service provider staff is not face-to-face with a client.”

The decree goes so far as to cite specific reimbursable activities, including negotiating with employers and counseling clients by telephone, which are not covered by the current system.

Currently, BHDDH reimburses private agencies for daytime services according to the amount of time each worker spends with a client. The time must be documented for each client and worker in 15-minute increments. Agencies are not reimbursed when clients are absent, for whatever reason. Unless a client has 100 percent attendance, the agency cannot collect the full amount of funding that BHDDH authorizes for each person on an annual basis.

In response to McConnell’s request for information on performance-based contracts, the state’s report says those are still in the planning stages in all agencies governed by the state’s Executive Office of Human Services, including BHDDH. The report indicated BHDDH would have performance-based contracts in place with service providers during the next fiscal year.  The consent decree says performance-based contracts were to have implemented by Jan. 1, 2015.

Consent Decree Requires its Own Budget

The 2014 agreement between the state and the Justice Department requires that the state maintain a budget that can track the amount spent on consent decree compliance that is distinct from general expenditures on behalf of adults and adolescents with developmental disabilities.

Besides the planned $5 million in wage increases, the state’s compliance report cites another $1,870,474 in enhanced services targeted for a total of 75 individuals who would move to supported employment from a sheltered workshop or a segregated day program during the next fiscal year.

McConnell had asked the state for individualized funding information and other information that “follows the person” as each of the individuals under the jurisdiction of the consent decree makes the transition from a sheltered workshop to community-based employment or integrated day services.

So that the court, the monitor, and lawyers for both sides can track specific individuals’ progress over time while protecting their privacy, McConnell said that each person should be identified by a letter code that blocks personally identifiable information.

The state did not submit any information that could be tracked on an individual level, but its report says that it has contracted with the Sherlock Center on Disabilities at Rhode Island College to reconfigure an existing “Employment and Day Supports Survey” to accomplish that goal.

Beginning in June, the Sherlock Center will conduct the survey quarterly, providing all the requested data and enabling “ongoing measurement of targets related to the consent decree at the individual level,” according to the report.

BHDDH already has a $675,000 contract with the Sherlock Center to provide technical expertise and guidance to private agencies converting from segregated programs to community-based day services in a so-called “Conversion Institute” required by the consent decree. Governor Raimondo would keep that level of funding for the Conversion Institute in her budget proposal for the next fiscal year.

The state is “working systematically” with Sherlock Center on the Conversion Institute, as well as with direct support agencies, “to entirely transform the delivery system” for supported employment and integrated day services in Rhode Island, according to the report.

The state’s report identifies a total of 3,076 individuals with intellectual or developmental disabilities under the purview of the consent decree, including 99 who left high school in the 2013-2014 and 2014-2015 academic years.

The consent decree requires integrated employment for 75 adults formerly in sheltered workshops or segregated day programs by Jan. 1, 2016, and the state ’s report counted 101 who had met that goal.

Another of the decree’s requirements is that all of the 99 students who left high school in the past two years were to have jobs by July 1, 2015, but as of April 1, the state had identified 37 in that category who have work.  

Moseley, the monitor, told the judge in his most recent report report that his conversations with private providers and with BHDDH staff indicate that the agencies are not receiving any extra support to place people in jobs and may not be able to keep up the current pace.

Other Consent Decree-Related Funding

The state’s April 1 submission enumerates other consent decree expenditures, from July 1, 2014 through the end of the next fiscal year, June 30, 2017, at the three agencies responsible for implementation: BHDDH, the Rhode Island Department of Education (RIDE) and the Office of Rehabilitation Services of the Department of Human Services (ORS.)

The categories and amounts are:

• $800,000 in each of the current and previous fiscal years for a consent decree “trust fund” to help direct service agencies with start-up costs for converting from sheltered workshop operations and segregated day programs to community-based supports.

• $244,260 to the National Association of State Directors of Developmental Disabilities Services (NASDDDS) and its State Employment Leadership Network (SELN) for guidance and technical assistance in transforming the state’s system of services. The SELN is a partnership between the NASDDS and Institute of Community Inclusion at the University of Massachusetts Boston.

• ·A tripling of the ORS budget for services to individuals with developmental disabilities, from $884,370 in the first fiscal year of the consent decree (July 1, 2014 to June 30, 2015)  to a projected $2,603,374 in the next fiscal year.

•  More than $300,000 a year, through the next fiscal year, budgeted by RIDE for personnel and contracts to help implement the consent decree, in addition to supports provided by individual school districts to transition-aged special education students.

• A total of $591,244 for new leadership positions focused on implementation of the consent decree: a consent decree coordinator, a chief transformation specialist, an employment specialist and a program development director.

Moving to Fill Leadership Gap

The most critical of the posts is that of the consent decree coordinator, Mary Madden, whose position gives her authority to bring about cooperation among BHDDH, ORS, and RIDE in implementing the consent decree, according to the report.

As recently as December, Moseley and lawyers for the DOJ had expressed concerns that the coordinator’s position, subordinate to BHDDH director Montanaro, did not have enough clout and that leadership was foundering. 

Since then, Madden has been appointed as the coordinator on a permanent basis and reports directly to the Secretary of the Executive Office of Health and Human Services, Elizabeth Roberts, “with the full authority of the Secretary and the Governor,” according to the report.

“The Secretary of Health and Human Services, the deputy secretaries and each of the directors of the state agencies are personally involved in monitoring consent decree implementation” and are briefed regularly by Madden and by their representatives on an “Interagency Consent Decree Team,” the report said.

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.”