RI DD Workers To Get Raise Effective Oct. 1

By Gina Macris

A total of $9.5 million in raises for Rhode Island’s front-line developmental disability workers will go into effect Tuesday, Oct. 1

The state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) has made calculations based on a on a “rate model” that assumes direct care worker earnings will increase by 91 cents an hour, from $12.27 to $13.18, according to a departmental memo to private provider agencies.

Historically, the actual wages of direct care workers have not matched up with the rate model, which providers say does not allow enough for payroll taxes, workers’ compensation and health insurance.

On average, entry-level employees now make about $11.44 an hour, while more experienced direct care workers make an average of about $12.50 an hour, according to a survey of members of the Community Provider Network of Rhode Island (CPNRI), a trade association which represents about two thirds of developmental disability organizations in Rhode Island.

By comparison, the Connecticut legislature enacted a minimum wage of $14.75 for developmental disability and personal care workers in 2018 to avoid a statewide strike at group homes. Massachusetts pays $15 an hour for personal care workers, a category which includes many who support adults with developmental disabilities.

Unlike previous raises for workers in Rhode Island, the impending increase applies only to those providing direct care and not to supervisors or specialists like job developers, according to the budget legislation enacted by the General Assembly. The raises also apply to independent workers who serve individuals and families who direct their own programs.

The assumptions in the rate model are used to calculate dozens of actual rates for specific services, many of them expressed in 15-minute increments according to various staff-to-client ratios.The rate changes required federal approval because they are funded by the federal-state Medicaid program.

In addition to the 91 cent increase for hourly wages in the rate model, the model allows 35 percent, or an increase of nearly 32 cents an hour, for employee-related overhead.

Providers have said that it costs them as much as 64 percent of wages pay for employee-related expenses. As a result, the full amount of previous wage increases calculated by the state in the rate model often has not flowed to workers’ pockets.

In the recent notice about the latest wage boost sent to providers, BHDDH said “it is expected that the rate increases will support Direct Support Professional raises of a minimum of $0.91 per hour and offset related payroll expenses (up to the 35.0 percent assumption utilized in the existing rate model.)”

After the rate change goes into effect, BHDDH will require agencies “to attest to (verify) the use of the additional revenue for the required minimum wage increases and associated payroll expenses through an attestation document or form,” the memo says. It says BHDDH officials will schedule a meeting with providers in coming weeks to develop the process for documenting the use of the $9.5 million.

Additional clarification from BHDDH was not immediately available about what might happen if providers say they cannot pass along the entire 91-cent hourly pay increase to workers.

Tina Spears, executive director of CPNRI, said providers are “thrilled” with the wage increase. Her members “will be using this increase as it was intended by the General Assembly and the Administration,” she said in an email.

In a statement, CPNRI called the impending increase a “welcomed and necessary investment” by the General Assembly and the administration of Governor Gina Raimondo in supporting direct care worker in the work they do.”

Direct care workers, or “Direct Support Professionals (DSP’s) are skilled professionals who deserve compensatory wages that reflect the valuable work they perform,” CPNRI said in the statement, emphasizing that one of its continuing policy goals is to work for a living wage for agency employees.

Over the last four years, the trade association said, private provider agencies have received a $1.63 hourly increase in the reimbursement rate, while the minimum wage has increased by $1.50 over the same period.

At the same time, inflation, health insurance premiums, workers’ compensation premiums, and taxes have risen far beyond the $1.63 rate increase awarded by the state, the statement said.

CPNRI said the gap between state reimbursement and actual costs “continues to be an ongoing challenge that providers are prepared to address during the rate review process” now underway by the New England States Consortium System Organizations (NESCSO) at the behest of BHDDH.

BHDDH has commissioned the outside review of the fee-for-service reimbursement system, which has been criticized by providers, consumers and even federal officials involved in a civil rights consent decree which requires the state to overhaul its adult system of developmental disability services by 2024 to foster the integration of individuals in their communities..

Enacted by the General Assembly in 2011, the design of the reimbursement system incentivized segregated care, which the U.S. Department of Justice said violated the civil rights of adults with developmental disabilities to receive services that integrate them with their communities.

NESCSO’s work is expected to continue through next June. Its representatives have said they expect to make interim recommendations in time to be reflected in the next BHDDH budget.

The consortium does not expect to recommend specific rates, but rather, a roadmap of what it would take to meet the requirements of the 2014 federal consent decree for daytime services, as well as other recommendations affecting the entire system, according to Elena Nicolella, NESCSO’s executive director

Spears, the CPNRI director, said that NESCSO’s rate reviewers have been “very thorough and professional” in reaching out to private providers for their feedback.

CPNRI said providers “welcome and commend our state leaders for their attention to the workforce crisis that has challenged our service delivery system.”

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

Bill Proposes Ombudsman to Protect Rhode Islanders With Developmental Disabilities

By Gina Macris

An independent ombudsman who would represent the safety, health and other interests of adults with developmental disabilities in Rhode Island has been proposed by state Rep. Eileen S. Naughton, (D-Warwick).

Naughton filed a bill that would establish the state government position following the death of Barbara A. Annis, 70, in February.  Annis suffered massive infection that developed after a fracture of a thigh bone went untreated for several days. 

 In the immediate aftermath of Annis’ death, the Rhode Island Developmental Disabilities Council called for legislation creating an independent advocacy office like the one Naughton’s bill would set up.

“We have a child advocate as well as an advocate for the elderly and the mentally ill, but none for the developmentally disabled,” Naughton said in a statement April 8. If enacted, the bill would establish the ombudsman’s office within the state Department of Administration.

“We’ve taken great strides in our efforts to make Rhode Island society more inclusive for the developmentally disabled. The next step is to have an independent advocate to ensure that the health, safety, welfare and rights of the developmentally disabled are more secure,” she said. The bill is 2016-H 8038.

Naughton’s proposal comes as the state’s attention has been focused on issues affecting persons with developmental disabilities in two ways:

• Hearings in U.S. District Court about the state’s compliance with a consent decree that would transform how Rhode Island provides inclusive employment and other services to persons with developmental disabilities.

• · Multiple investigations involving conditions at more than 200 group homes for persons with developmental disabilities following Annis’ death.

The state Attorney General’s Office and State Police launched criminal investigations as a result of Annis’ death Feb. 15 at Roger Williams Medical Center in Providence. Five staff members of the state-run group home where she lived have been placed on paid leave.

The home, College Park Apartments on Mount Pleasant Avenue in Providence, has been closed by the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH), and the remaining 14 residents have been moved elsewhere.

The Rhode Island Disability Law Center has opened an investigation into the welfare of Annis’ former housemates.

In addition, BHDDH, in cooperation with the state Department of Health, last month began unannounced inspections of 269 private and state-run group homes.

Legislators Describe "Broken" System of Disability Services

By Gina Macris

For some individuals, there is a big gap between vision and reality under the terms of the federal consent decree that attempts to bring Rhode Island into compliance with the Americans With Disabilities Act.

Legislators described some of the real-life experiences during a session of the House Committee on Health, Education and Welfare (HEW), Thursday, April 7, at which two officials involved with the consent decree briefed lawmakers about progress of the court case.

State Rep. Dennis Canario, D-Portsmouth, said that one of his constituents used to have work through the James L. Maher Center, which is headquartered in Newport, but now he sits at home, doing nothing.

The man had been in a job where he interacted primarily with other people with disabilities, while the consent decree mandates that Rhode Island’s developmental disability system move toward community-based employment. Canario said, in effect, that the second part of the equation has not materialized for his constituent.

“I don’t understand the whole thing,” Canario said, “There are broken parts to it. People are becoming victims.”

A similar account was described by Rep. Joseph N. McLaughlin, D-Cumberland and Central Falls, who said one of his constituents is a man who uses a wheelchair and has had a total of 17 surgeries for a medical condition.

The man’s family has been notified that his state support would be cut off “because he wasn’t working,” McLaughlin said, adding, “Somebody screwed up somewhere.”

Charles Moseley, the federal court monitor on implementation of the consent decree, said there is a variance process for individuals for whom employment is not appropriate.

 Moseley also said he wants to hear from families and individuals who are having problems during the implementation of the consent decree. 

He and A. Anthony Antosh, director of the Sherlock Center on Disabilities at Rhode Island College, said a lack of funding is the chief cause of the problems experienced by individuals who depend on developmental disability services. 

Antosh, who provides technical expertise and guidance to implementation efforts, said a total of 20 percent was cut from the state’s developmental disability budget between 2009 and 20012.

Progressive practices that were commonplace in 2000 and 2001 were “deconstructed” as a result of the cumulative impact of funding reductions and led to the U.S. Department of Justice initiating an investigation into the state’s sheltered workshops, Antosh said.  That investigation resulted in the consent decree, signed in 2014.

An evidentiary hearing on the state’s compliance with the decree – which undoubtedly will touch on funding – is set to begin at 10 a.m. Friday, April 8,  in U.S. District Court before Judge John J. McConnell, Jr.

The HEW Committee Chairman, Joseph N. McNamara , D-Warwick, pointed to gaps in service when young people transition from school-based programs to adult services.

“The last few monthsof school are cruel and unusual punishment,” McNamara said. “It’s one of the saddest things that take place in our schools,” he said.

McNamara said the House recently passed a bill sponsored by Rep. Samuel A. Azzinaro, D-Westerly, Deputy House Majority Leader, that would require school districts to retain students with disabilities through the end of the academic year during which they celebrate their 21st birthday. The bill now needs support in the Senate, he said.

Canario, a committee member and the father of a child with a disability, said the service gap is a big issue.

“I couldn’t agree with you more,” Moseley said.

“Are you saying that exiting school without a transition plan is a violation of the Americans With Disabilities Act?” Canario asked.

Moseley paused, as if to choose his words. The consent decree has “specific requirements” for transition services that include a career development plan, beginning at age 14, he said.

McNamara said, “Transition planning is not taking place.”

He cited the case of a young man from Westerly who was “helping out” at the General Assembly on Wednesdays in a student vocational experience and was suddenly “thrown out of school.”

“He doesn’t understand why he can’t help out with all these activities” any more, McNamara said.

The system is broken, Canario said. “Too many kids – young adults – are turning 18 and their services are being dropped.”

“I’m not disagreeing with you,” said Moseley.

Consent Decree's Community Task Force Airs Worries

By Gina Macris

Nicole Zeitler

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Funding hinders individualized services

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

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

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

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

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

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

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

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

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

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

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

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

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

Coordinator Introduced

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

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

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

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

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

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

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

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

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