Judge Will Settle Argument Over Witnesses In Consent Decree Case

By Gina Macris

Sometime in September, the state of Rhode Island drafted a settlement agreement, aimed at avoiding upcoming federal court contempt proceedings, for continuing violations of a 2014 civil rights consent decree case affecting adults with developmental disabilities.

But as the state’s lawyers were planning to show the proposal to the U.S. Department of Justice (DOJ), pre-trial legal sparring moved front and center, and the chances for any settlement to resolve the contempt charges remain unknown.

In an email chain made public in a court filing, the state’s lead lawyer told a counterpart at the DOJ on Sept. 30 that his team hoped to confer with DOJ lawyers in the following days about the proposed settlement.

Those emails also showed the two sides sparred over pre-trial procedures, coming to an impasse over the deposition of witnesses in the contempt hearing, scheduled to begin Oct. 18. A longstanding lack of funding and staff to carry out compliance with a 2014 consent decree would be a be a key issue in the contempt hearing.

The DOJ asked Chief Judge John J. McConnell, Jr. of the U.S. District Court to intervene, and compel the state to make available a total of 15 witnesses, including the House and Senate fiscal advisors, in time for the DOJ to depose all of them in accordance with a pretrial deadline already established in a court order.

McConnell has scheduled a teleconference with the lawyers for 4 pm on October 7.

In asking McConnell to intervene, the DOJ included a Sept. 30 chain of emails between DOJ lawyer Victoria Thomas and two state lawyers, Marc DeSisto and Kathleen Hilton.

In the emails, DeSisto and Hilton pushed back the start of depositions, in the process postponing a deposition that had already been scheduled with the state’s chief auditor in the Office of Management and Budget.

In addition, DeSisto and Hilton said they could not make the House and Senate Fiscal Advisors available for deposition at all. Sharon Ferland holds the House post and Stephen Whitney advises the Senate.

Hilton wrote: “Without more information as to the reasons you are seeking to call Sharon and Stephen as witnesses, we cannot make a determination on whether we could agree to make them available. There very well may be privileges that need to be preserved by way of a motion for protective order. Additionally, we do not have the authority to accept a subpoena on their behalf.”

DOJ’s Thomas replied: “We are seeking the testimony of Sharon and Stephen based on the Court Monitor’s opinion that they have valuable information relevant to the funding provision of the Consent Decree. We have now exhausted our good faith efforts to resolve this dispute and will be filing a motion to compel shortly.”

Earlier in the email chain, DeSisto had mentioned the proposed settlement:

“As we discussed in last evening's phone call,” he wrote to Thomas, “it is my hope that in the next few days we can confer regarding the terms of settlement. We are waiting for some feedback from Tony (A. Anthony Antosh, the independent court monitor) in this regard. Once we receive his input, we would like to have a settlement conference with you, maybe as early as tomorrow.”

Thomas replied:

“We are eager to see the State's written settlement proposal and to conference with you tomorrow. That said, while we remain hopeful that a settlement may potentially resolve our contempt motion, we must preserve our litigation rights.” Thomas continued to press for assurances on the depositions.

In its contempt motion, The DOJ has stated that, if necessary, it is prepared to present evidence that the state “failed even to ask its Legislature for a sufficient appropriation” and that it “failed to make efficient use even of the resources it had – for example, by failing to modify State rules and incentives that favor providers of less integrated services over providers of more integrated services.”

The DOJ has proposed an escalating scale of fines, from $500,000 on the first day of each of the first two months to $50,000 a day beginning on the 70th day. At that rate, the fines would add up to about $1.5 million a month.

RI Direct Care Workers To See Raises in October Paychecks; Legislator Says They Deserve More

By Gina Macris

Raises for direct care workers in Rhode Island, including those who serve persons with developmental disabilities, are scheduled to show up in paychecks in October. But the increases are unlikely to fix problems caused by wages that many consider inadequate to stabilize a workforce plagued by high turnover, high vacancy rates, and high overtime. 

Even after receiving the pay hike, many workers will be forced to continue working second jobs to make ends meet.

Meanwhile, their employers will still have to scramble to fill vacancies, as Massachusetts prepares to pay $15 an hour for the same work beginning July 1, 2018.  Currently, one in six jobs goes unfilled, driving up overtime costs for developmental disability providers, according to the Community Provider Network of Rhode Island, (CPNRI), a trade association.  

Those who work with adults with developmental disabilities in Rhode Island make an average of $11.14 an hour, and an estimated increase of 42 cents would bring that hourly rate to $11.56. The exact increase is expected to vary from one agency to another, depending on benefits offered.

Unless the workers are single adults supporting only themselves, $11.56 an hour is not enough for a minimum subsistence wage – no restaurant meals, entertainment or savings accounts - that nevertheless avoids food stamps or other public assistance, according to the Living Wage Calculator at the Massachusetts Institute of Technology.

In Rhode Island, 41 percent of those working with adults with developmental disabilities have taken more than one job to make ends meet, according to CPNRI. The trade associaation presented figues to the General Assembly earlier this year that show 65 percent of direct care workers were heads of household in 2014, and 48 percent of them received public assistance between 2011 and 2013, the latest period for which data was available.

Entry-level positions for direct care positions at developmental disability service agencies generally hover a little above the minimum wage, currently $9.60 an hour. But the minimum wage is to get a 50-cent bump to $10.10 on Jan. 1 and another increase, to $10.50 an hour, on Jan. 1, 2019.

 In the current budget, $6.1 million in federal-state Medicaid dollars have been set aside for raises for those who provide direct care to adults with developmental disabilities, effective July 1.

Governor Raimondo also asked for a total of $5.2 million for increasing the pay of home health care aides, but the General Assembly delayed implementation of that raise until Oct. 1. House spokesman Larry Berman said that the way a similar increase was paid out to home care workers in 2016 made implementation problematic prior to Oct. 1 of the budget year and that issue was taken into account this year. The delayed implementation also saves more than $600,000 in state funds.  

Developmental disability service agencies also can expect to see higher reimbursement rates Oct. 1, but those increases will be retroactive to July 1, in accordance with language in the budget.

State Sen. Louis DiPalma, D-Middletown, who has led a call for improving the prospects of direct care workers, agreed that the direct care workers are treading water, in effect, relative to the minimum wage.  

He said he is well aware that raises enacted in 2016 and 2017 are not enough to compensate them for complex work that is often also physically demanding.

The new Amazon warehouse in Fall River is paying more than $12 an hour to start, he said.

In the fall of 2016, DiPalma launched a “15 in 5” campaign to increase pay of home health care aides and direct care workers to $15 an hour in five years – by July 1, 2021.

There appears to be broad sentiment in the legislature that direct care workers deserve better, judging from the number of bills introduced in the General Assembly earlier this year to speed up the climb to a $15 hourly rate. One measure, sponsored by the House Deputy Majority Leader, Rep. Jean Philippe Barros, D-Pawtucket, would have set Jan. 1 as the implementation date for a $15 hourly wage.

But the bills appear to have been more a gesture more than anything else.

DiPalma, first vice-chairman of the Senate Finance Committee, said that the state’s finances cannot support that kind of a boost immediately.

The state faces the prospect of a $237 million deficit in the fiscal year that begins next July 1, according recent memos from the State Budget Officer, Thomas Mullaney, and the Senate Fiscal Advisor, Stephen Whitney. And that estimateddeficit does not include $25 million in unspecified savings which the state still must trim from the current budget. Jonathan Womer, Director of the Office of Management and Budget,  has expressed skepticism that all the cost-cutting assumptions in the enacted budget can be achieved.

Department heads preparing for the next budget cycle are being asked to cut expenditures by 10 percent, with one exception being entitlement programs, like the federal-state Medicaid program, which funds the pay for home health care aides and developmental disability workers, among many other services.