Judge Steps Up Pressure On RI DD Hiring

By Gina Macris

John J. McConnell, Jr.

With the state of Rhode Island six months behind in its promise to recruit and hire  critically-needed caregivers for adults with developmental disabilities, a federal judge has stepped in to jump start expansion of the work force. 

On May 3, Chief Judge John J. McConnell Jr. of the U.S. District Court ordered the state to prepare a recruitment strategy by Aug. 1. He also ordered specific steps the state must take to boost hiring.  

McConnell said that by Aug. 1, the state must bring on a sufficient number of recruiters, who, in turn, can attract 60 job candidates that will result in 35 new hires each month between August and next May.  

“The workforce shortage continues to be a primary barrier to substantial compliance,” McConnell said in the order. 

McConnell’s order included two other steps:

• Beginning in June, the state will be required to report every two weeks to the court’s independent monitor showing its progress in four areas in establishing and training an adequate workforce.

• By June 30, the state must conduct focus groups with provider organizations, families and individuals who run their own service programs, as well as other relevant organizations, to gather the information necessary to develop a statewide recruitment strategy.. 

McConnell’s order is his latest in a long-running effort, initiated by the U.S. Department of Justice, to get the state to comply with a consent degree in which it agreed to reinvent a developmental disabilities system organized around day care centers and sheltered workshops into one providing broad job and social opportunities for men and women. 

The workforce recruitment initiative is but one part of a comprehensive “Action Plan” the state proposed to McConnell last October to avoid a hearing on contempt charges and possible hefty fines. But now, the state is far behind in its promised hiring effort. 

The state was to have hired a consultant by last Nov. 15 to coordinate a statewide initiative to expand the number of direct care workers. 

But the state is still working on the wording of a bid proposal for the consultant’s contract, with the bid next having to go through the state purchasing system, according to a spokesman for the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH). 

Since late February, individual provider agencies have had access to money from the first phase of a $12 million Transformation Fund designed to help them and individuals and families directing their own programs to strengthen community services. Individuals and families who direct their own programs will also have access to the fund.

There was a $15 million Transformation Fund in Governor McKee’s original budget proposal for the current fiscal year, but it was never enacted.

The idea of a Tranformation Fund re-appeared in the Action Plan adopted by McConnell in October, but the providers had to wait five months to access their portions of money because funding - $12 million from the federal American Rescue Plan Act (ARPA) - was not allocated by the General Assembly until Jan. 4. Then the actual funding had to wend its way through the state bureaucracy before it was released to the providers.

Now many of the providers are launching individual workforce recruitment initiatives as the first step in transforming services, but they have been unable to leverage any statewide coordination.  

One section of the consent decree requires the state to maintain an adequate workforce.  

But McConnell noted that earlier consultants ’ reports to the court “documented more than 1,000 direct support vacancies.” The consultants said the state had nearly 1,800 of some 2850 front-line workers needed to staff community-based, individualized activities.  

And the state has only a little more than two years to turn the situation around before the full compliance deadline of the consent decree on June 30, 2024.  

McConnell’s May 3 order speeding up the workforce initiative includes reports by the state to the court monitor in these areas:

• recruitment and retention

• training and professional development

  establishing work standards and a credentialling path for workers

• the involvement of institutions of higher learning in growing a trained workforce. 

The focus groups McConnell also ordered are to develop a recruitment strategy addressing these areas:

• The compliance needs of the state

• Possible career pathways for workers and possible pipelines for new talent

• “New concepts” for providing services

• Factors associated with job turnover and factors associated with retention

• Staff roles and responsibilities. 

Depressed wages for front-line caregivers are the primary cause of high turnover and vacancy rates. These two factors have led to a lack of sufficient services for vulnerable people who are entitled to them by law.  

In January, 2021, McConnell ordered the state to raise starting wages, then about $13.18 an hour, to $20 an hour by 2024.

Governor Dan McKee’s initial budget proposal for the current fiscal year, released in  March, 2021, contained no wage increase. But as a result of court-ordered negotiations between the state and private service providers, base pay jumped from $13.18 to $15.75 last July 1.  

This year, McKee has proposed raising direct care wages to $18.00 an hour, but recent inflationary pressures on the job market has prompted Sen. Louis DiPalma, D-Middletown, and Rep. Evan Shanley, D-Warwick, to propose companion bills that would hike that  hourly rate to $21 on July 1.

While the workforce shortage has been exacerbated by the COVID-19 pandemic, it has been building for more than a decade, ever since the General Assembly enacted the fee-for-service reimbursement system known as “Project Sustainability” in 2011 in conjunction with rate cuts of about 18 percent overall to private service providers.

Project Sustainability resulted in layoffs, double-digit pay cuts, and a growing exodus of workers. Jobs which once paid a living wage and had opportunities for advancement were turned into subsistence work.  

In 2014, the federal Department of Justice  found that Project Sustainability’s over-reliance on sheltered workshops and day care centers violated the rights of individuals to choose individualized services in their communities. Sheltered workshops were eliminated in 2018. 

Even after the state agreed to correct these civil rights violations, it did not follow through with the necessary funding.

From 2011 through 2018, funding for developmental disabilities never caught up with the cost-of-living, according to an analysis prepared by the Senate Fiscal Office for Sen. DiPalma in 2018 He is first vice-chairman of the Senate Finance Committee.  

McConnell took the bench in January, 2016 to oversee the case at the request of the DOJ and an independent court monitor, who in 2015 had found implementation lagging after an initial flush of success with former sheltered workshop employees who quickly found competitive employment.  

Beginning in 2016, the main fiscal strategy of the state was a multi-year effort to shift funding to daytime services from residential care by moving people from costly group homes to less-costly shared living arrangements in private homes.   

While shared living has grown slowly, it has not resulted in the significant savings that state officials originally envisioned.   

In response to pressure from the court in 2016, the Division of Developmental Disabilities hired professional staff to work on supported employment and community inclusion initiatives, but core requirements of Project Sustainability remain in place.  

They include staffing requirements geared to center-based care that are impractical in the community.  

In August, 2021, with the state falling farther behind in the number of job placements required by the consent decree, the DOJ asked McConnell to find the state in contempt of court and levy hefty fines.  

The state responded with the Action Plan, which McConnell turned into a court order.  

A key portion of the Action Plan is a rate review that is being conducted by Health Management Associates, a healthcare consultant which bought the firm responsible for creating Project Sustainability in 2011 There hasn’t been a rate review since then.  

In 2018, the lead consultant on Project Sustainability testified publicly that a rate review of developmental disability services was already overdue.  

Mark Podrazik, a co-founder of the former Burns & Associates, told a legislative commission that his firm recommends rate reviews every five years at a minimum. (Proposed legislation separate from the ongoing rate review would require Rhode Island to update reimbursement rates to developmental disability service providers every two years.)  

Podrazik, who now works for Health Management Associates on hospital projects, also said that the state undercut Burns & Associates rate recommendations in creating Project Sustainability in 2011. 

The current rate review is to be completed by Dec. 1, 2022, giving the state just 18 months to enact changes and get the federal government to sign off on its oversight role before the 2024 compliance deadline.  

To read Judge McConnell’s order, click here.

Eric Beane, RI Secretary Of Health And Human Services, To Step Down; Career Options "Open"

By Gina Macris

ERIC BEANE * Photo Courtesy Of State Of RI

Eric Beane, Rhode Island’s Executive Secretary of Health and Human Services, will step down at the end of the year, the office of Governor Gina Raimondo announced Nov. 15.

Over the four years of Raimondo’s first term, Beane has served the governor in several high-level capacities, most notably as a troubleshooter assigned to clean up the disastrous roll-out two years ago of UHIP – Unified Health Infrastructure Project – a computerized public assistance system that left thousands of needy individuals without benefits.

Raimondo has appointed Lisa Vura-Weis, a deputy chief of staff in her office, as interim Secretary while a search for a permanent replacement is underway.

Beane, whose last day on the job will be in mid-December, plans to travel and spend time with family and friends, according to a spokeswoman for the Executive Office of Health and Human Services. He is “leaving his career options open,” the spokeswoman said.

In a statement, Raimondo said she is “deeply grateful for Eric's four years of service to the people of Rhode Island. Because of Eric's work, Rhode Island's health and human services are undoubtedly stronger today than they were when I first took office."

Raimondo, in addition to noting his work on the UHIP system, credited Beane with directing the reform of the Department of Children, Youth and Families (DCYF) and overseeing the implementation of a “nationally recognized action plan to address the addiction and overdose crisis that is saving Rhode Islanders’ lives.”

Beane, a former trial attorney for the U.S. Department of Justice and former deputy chief of staff for former Governor Martin O’Malley of Maryland, came to Rhode Island as Raimondo’s deputy chief of staff in 2015. He also served as Raimondo’s Chief Operating Officer, overseeing social services, and served as acting director of the Department of Human Services before he was named to the Secretary’s position in the wake of UHIP scandal in May, 2017.

As acting Secretary, Vura-Weis will focus primarily on budget and management and help with a comprehensive search for a permanent replacement to Beane, according to a statement issued by the governor’s office.

In her current position she has focused on health and human services, administration, and management, working closely with Beane and Raimondo on UHIP.

Before joining the Raimondo administration she worked for the Boston Consulting Group on projects related to healthcare effectiveness. Vura-Weis also has worked for the state of New York on healthcare insurance reform. She has a master’s degree in business administration from Columbia University and a master’s degree in public health from Princeton.

The Secretary of Health and Human Services oversees the Departments of Health, DCYF, the Department of Human Services, and the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH). Among other things, BHDDH is charged with implementing reforms in services for adults with developmental disabilities to comply with a 2014 federal civil rights agreement with the Department of Justice.

Jennifer Wood, Leader of RI DD Consent Decree Compliance, To Leave State Government

Photo by Anne Peters

By Gina Macris

Jennifer L. Wood, largely responsible for accelerating Rhode Island’s lackluster response to a federal consent decree affecting adults with developmental disabilities, is leaving state government to become director of the Rhode Island Center for Justice.

The non-profit public interest law center works with community groups and the Roger Williams University School of Law to strengthen legal services and advocacy on issues that reflect the most pressing needs of low-income Rhode Islanders, including housing, immigration, and workers’ rights.  

Miriam Weizenbaum, the board chair for the Center for Justice,  announced the appointment Wednesday, May 3, saying that Wood’s legal background in public interest law, combined with her extensive experience in education and health and human servicesin state government, “makes her an ideal leader for the Center for Justice at a time when basic rights are under significant challenge.” 

Wood was deputy secretary and chief legal counsel to Elizabeth Roberts until Roberts resigned in mid-February as head of the Executive Office of Health and Human Services amid fallout from the UHIP fiasco, the botched roll-out of a computerized Medicaid benefits system. Thousands of Rhode Islanders were left without a wide range of benefits, including from food stamps, health coverage, subsidized child care, and even developmental disability services. At the time Roberts left, Wood was demoted to general counsel.

AshleyG. O’Shea, spokeswoman for OHHS, noted in a statement that Wood has devoted two decades of her life to state service and said, “We wish her the best in her new endeavor.” 

In March, the office of the U.S. Attorney in Providence issued a demand for UHIP documents, saying it is investigating the “allegation that false claims and/or payment for services and/or false statements in support of such payments have been submitted to the U.S. government.“

In a statement May 3, Wood indicated that since the November election, she has been considering a change in career to go back to her roots. As a lawyer in the private sector, her work emphasized civil rights and disability rights. She represented inmates at the Rhode Island Training School and special education students, among others who otherwise might have lacked a legal voice.

Wood joined state government in 1998 as chief of staff at the Rhode Island Department of Education, leaving in 2007 to work as Roberts’ second-in-command after the latter was elected Lieutenant Governor. When Governor Gina Raimondo appointed Roberts as Secretary of Health and Human Services in 2015, Wood followed as deputy secretary and chief legal counsel.

At the end of 2015, when U.S. District Court Judge John J. McConnell, Jr. signaled that he would personally oversee enforcement of the consent decree affecting daytime services for adults with developmental disabilities, Wood took charge of moving the implementation forward.

At that point, the agreement had brought virtually no change to the lives of adults with developmental disabilities since it was signed in April, 2014. By all accounts, Wood moved the implementation into high gear. 

O’Shea, the OHHS spokeswoman, said Wood is turning over her responsibilities in developmental disabilities to other officials, including Dianne Curran, a lawyer who is consent decree coordinator, and Kerri Zanchi, the new director of developmental disabilities. They are in touch with the federal court monitor and the U.S. Department of Justice weekly, according to O’Shea.

The consent decree requires the state replace sheltered workshops and segregated day programs with community-based supports so that adults with developmental disabilities may seek regular jobs and enjoy non-work activities in a more integrated way. The desegregation of services for everyone with disabilities was ordered by the U.S. Supreme Court in the Olmstead decision of 1999, which re-affirmed Title II of the Americans With Disabilities Act. 

RI DD Director Invites Families to Help Overhaul Design of Services With Individual Needs in Mind

Photos by Anne Peters

Kerri Zanchi, center, Director of the RI Division of Developmental Disabilities, is flanked by administrators Heather Mincey, left, and Anne LeClerc, right, as she addresses the audience at a public forum in Newport May 2. 

By Gina Macris

Beginning May 10, Rhode Island’s Division of Developmental Disabilities plans to involve the adults it serves, their families, service providers and advocates in a step-by-step process to overhaul the way it does business .

Kerri Zanchi, the new director of the division, told Aquidneck Island residents who attended a public forum May 2 at the Community College of Rhode Island that the initial discussions will inform an effort to re-write the regulations governing developmental disability services to put the needs and wants of its clients front and center. 

The changes have two drivers:

• A 2014 consent decree requiring the state to correct violations of the Americans With Disabilities Act by providing employment supports and access to non-work supports in the community.

• A compliance deadline of March, 2019 for implementation of a Medicaid rule on Home and Community Based Services (HCBS), which requires an individualized approach to care, treating individuals with disabilities as full-fledged members of their communities.  

Both the consent decree and the HCBS rule draw their authority from the 1999 Olmstead decision of the U.S. Supreme Court, which amounted to a desegregation order affecting all services for all individuals with disabilities.

 Zanchi used the term “person-centered” to sum up the kind of planning and practices that go into the new inclusive approach.  A. Anthony Antosh, director of the Sherlock Center on Disabilities at Rhode Island College, elaborated.

A. Anthony Antosh

“The way the system has worked forever is that someone else controls what people get. We want people with disabilities to get more control of their own lives,” he said. “Resources support part of their lives but not all of their lives,” he said.

He said that in several states, including Texas, Kentucky and North Carolina, faith-based support networks in various communities have resulted in a “dramatically broader network” of personal relationships for individuals with disabilities. “And 80 percent of them have jobs,” Antosh said.

To flesh out the concepts of individualization and integration and how they might work in Rhode Island,  Antosh and Zanchi will co-host a series of discussions to explore the idea and solicit comments throughout the month of May.

The first two sessions will be held in the morning and evening of Wednesday, May 10 at the Sherlock Center. (Details at end of article.)

 “It’s a lot of change. It’s a pivotal time,” Zanchi said. But “if you don’t have a strong person-centered practice, it’s really hard to move the system forward and comply with the consent decree and HCBS.”

Zanchi said she and her staff will pull together comments from all the public sessions and present the results to the public in the early summer, setting the stage for regulatory reform.

Howard Cohen

Howard Cohen, whose adult son has developmental disabilities, took a dim view of the current regulations.  While the goal was to “even up the playing field among the agencies” by establishing uniform rates of reimbursement, he said, the regulations resulted in “a lot of resources toward book keeping rather than managing care.” 

And “the last time, the regulations got ramrodded through,” Cohen said, an allusion to the regulatory changes adopted by the General Assembly in 2011 as part of “Project Sustainability.”

Kevin Savage, director of licensing for developmental disability services, said all those with a stake in the regulations – including families – will be invited to participate in writing new ones.

The new regulations will not be aimed at “correcting past mistakes” but will try to conform to the law reflected in the consent decree and in HCBS, he said. The process also is expected to result in 20 percent fewer regulations than there are now, Savage said.

Zanchi emphasized that compliance with HCBS will mean a change in case management, or the formal approval process for allocating resources to each person’s program of services.

Currently social workers, who have an average caseload of 205 clients per person, share the case management responsibilities with provider agencies, she said. But HCBS sees an inherent conflict of interest in providers making decisions about the services they themselves furnish, to the possible detriment of the individualized goals of the client.

Zanchi said some states use third-party case management and others have state employees do the job, with a “firewall” between them and the fiscal arm of state government.  In Rhode Island, changes in case management won’t come until 2018, she said.

She also told family members that the state would explore expanding the options for residential care, an issue of particular concern to older parents in light of a virtual freeze on group home admissions. HCBS expects states will move away from group home residential care.

After the meeting, Zanchi was asked how changes in practice brought about by the new regulations would be funded.

“When we figure out what it (the service system) would look like, then we need to figure out the funding for it,” she said.

During the forum, Dottie Darcy, the mother of an adult with developmental disabilities, wondered aloud how officials would “develop a system, without money, to account for the needs of all the people. At some point funding has to be addressed,” she said.

“I think it’s outrageous” that service providers “can’t keep workers” because they can’t pay enough, Darcy said.

She lamented a lack of organized advocacy with members of the General Assembly on behalf of individuals with developmental disabilities.

Claire Rosenbaum, a member of the Rhode Island Developmental Disabilities Council, said it is in the process of trying to revive its family organization to do exactly the kind of work Darcy described, “but it’s not there yet.”

The first two sessions on “Person-Centered Thinking and Planning” will be Wednesday, May 10, from 10 a.m. to noon and from 6 p.m. to 8 p.m., at the Sherlock Center on Disabilities on the campus of Rhode Island College, 600 Mount Pleasant Ave., Providence. These meetings will be of particular interest to families who direct their own programs of services for family members, but all sessions in the series are open to the public.

Those wishing to attend should RSVP with Claire Rosenbaum by May 8 at 401-456-4732 or crosenbaum@ric.edu

Rhode Island Considers Reorganizing BHDDH; Finding "Strong" DD Director Is Top Priority

By Gina Macris

The Rhode Island Department of Behavioral Healthcare, Developmental Disabilities and Hospitals  may undergo restructuring, if it is determined that a different organization of services would better serve the  needs of it clients, a spokeswoman for the Executive Office of Health and Human Services (EOHHS) confirmed on Friday, Sept. 9  

Asked whether a departmental reorganization is on the table, Sophie O’Connell replied in an email: “No decisions have been made, but we are considering the option to make sure that we are delivering the best quality care and services to some of the most vulnerable people in our state.” 

Before she left in June, former BHDDH Director Maria Montanaro recommended that BHDDH be split up. The Eleanor Slater Hospital should be run by a dedicated board of directors, she said, while mental health and developmental disability services each should have a commissioner under the direct supervision of EOHHS. 

Such sweeping changes would require gubernatorial and legislative approval. On an ad-hoc basis, however, EOHHS has established direct oversight of the Division of Disabilities in recent months, primarily in response to the demands of a federal consent decree. 

O’Connell said there is no timeline for recruiting a permanent BHDDH director while EOHHS and BHDDH work on a plan that would take into account “how we can most effectively blend fragmented program, policy and funding streams to ensure Rhode Islanders are receiving the best possible care and services.”  Rebecca Boss serves as interim director of BHDDH. 

“Secretary (Elizabeth) Roberts as well as the BHDDH and EOHHS management teams are personally committed to ensuring continued progress on the important reforms taking place at BHDDH. This includes the ongoing work to improve services for individuals living with developmental disabilities and to recruit talented DD leadership into the agency,” O’Connell said. 

“Our most pressing concern at the present moment is recruiting a strong leader for the Division of Developmental Disabilities,” she said. 

The developmental disability director’s post is particularly critical as the state tries to comply with the federal consent decree by shifting away from sheltered workshops and segregated day programs toward integrated employment and community-based non-work activities. 

The division has been without a permanent director since July 22 when Charles Williams retired.

Jane Gallivan, who was coaxed out of retirement to serve as interim director of developmental disabilities, will step down at the end of the month because of family responsibilities, according to O’Connell. 

Although Gallivan will remain a consultant – primarily a long-distance one – the state has not announced who will administer developmental disability services in the short term or when a new director might be named. 

 As of Friday, September 9, the post had not been advertised on the state’s employment website. Nor has a search committee been seated.  

In response to repeated inquiries, over the past week, O’Connell said that Gallivan would providemore information Sept. 14 about the search for a director for the division. 

Gallivan, former developmental disabilities director in Maine and Delaware, plans to spend the winter in Florida with her 101-year-old mother, who has been staying on Cape Cod for the summer. 

DOJ: No Merit to Rhode Island's Objections to Compliance Fund

By Gina Macris

Saying Rhode Island’s objections have no merit, federal lawyers for a second time have urged a U.S. District Court judge to set aside state dollars to fund the so-called “sheltered workshop” consent decree – or to fashion whatever remedy he sees fit.

“The State’s objection to funding the Consent Decree is concerning and brings into questions its commitment to making the changes required,” lawyers for the U.S. Department of Justicewrote in a May 16 filing with the Court.

“Thus this Court must act to provide adequate incentive to the State to fund theConsent Decree, which it undoubtedly has the power to do,” the DOJ lawyers wrote to Judge John J. McConnell, Jr.

The DOJ’s plan would require the state to pay $5,000  each day it misses various compliance deadlines, and an additional $100 a day for each person whose services are delayed or interrupted as a result of inaction, with a cap of $1 million a year.

As an alternative to paying into the proposed Consent Decree Compliance Fund , the DOJ lawyers suggested that McConnell  come up with his own remedy.

The government’s remarks came in a filing in which it expressed surprise that the state is now offering “meritless objections” to paying into the proposed fund to  fulfill its responsibilities under provisions of the Americans with Disabilities Act (ADA).

In 2014, a DOJ investigation found the state for decades had illegally segregated adults with disabilities in sheltered workshops that paid sub-minimum wage, and in day programs cut off from the community. Rhode Island then agreed to federal supervision over a ten-year period to transform its system to emphasize supported employment in the community, adopting an “Employment First” policy.

The 2014 agreement marked the first such consent decree in the nation aimed at turning around daytime services that violate the 1999 Olmstead decision of the U.S. Supreme Court.

But the decree is just one part of a much broader, aggressive push begun by the Obama administration in 2009 to enforce the  Olmstead order, which said that Title II of the ADA requires agencies to serve individuals with a variety of disabilities, day and night, in the least restrictive environment that is appropriate.

In Rhode Island, the DOJ’s civil rights division earlier in May asked McConnell to put the court monitor in the case in charge of a Consent Decree Compliance Fund, citing the state’s continued failure to implement reforms.

The court monitor, Charles Moseley, would decide how to spend the money to benefit adults with disabilities.

Marc DeSisto, the state’s lawyer, objected, saying, in part, that the proposal amounts to a contempt order without the procedural rights enabling a defendant to show it made its best efforts to comply but was thwarted by forces beyond its control.

On May 16, the DOJ replied that “a finding of contempt would be appropriate at this juncture,” but its proposal does not ask for that. Instead, the Consent Decree Compliance Fund is envisioned as a vehicle for funding the consent decree, something the state said it wanted to do, according to the latest DOJ arguments.

During the last few months, all sides have agreed – in open court – that the developmental disabilities system does not have enough money to meet the consent decree requirements.  

Moseley, the monitor, told McConnell at one point that if the state didn’t meet certain benchmarks now, it would be impossible to achieve overall compliance by the time the decree expires on Jan. 1, 2024.

It was the state’s lawyer, DeSisto, who initially approached the DOJ and the monitor to ask for an evidentiary hearing so that the judge could gauge the state’s progress on compliance and decide what yet needed to be done to put the state on track to meet long-term goals.

At the hearing, held April 8, the state could not provide an accurate census of the individuals covered by the consent decree, the DOJ noted, but it did present evidence about a plan for achieving compliance going forward.

Now, the state is objecting to its own plan,  the DOJ lawyers said.

“After two years of noncompliance,” federal lawyers wrote, “it is appropriate and necessary, in the absence of commitment by the State to the basic compliance measures outlined in the Proposed Order, for the Court to take action.”