DOJ Seeks Fines Up To $50K Daily For Rhode Island’s DD Consent Decree Noncompliance

By Gina Macris

The US. Department of Justice has proposed fines up to $1.5 million a month against the state of Rhode Island for failing to comply with a civil rights consent decree protecting adults with developmental disabilities during the last seven years.

The proposed fines are part of a preliminary filing in connection with a contempt hearing scheduled for mid-October by Chief Judge John J. McConnell of the U.S. District Court.

“The United States has sought for several years to work with the State regarding its noncompliance, to no avail,” said the DOJ lawyers.

In a memorandum to McConnell, the DOJ said that the state has fallen far short of numerical targets for providing services for integrating adults with developmental disabilities in their communities, both for employment and non-work activities.

Nor has the state kept its promise to provide adequate funding to maintain the number of agencies and workers needed to provide these services, the DOJ said. Then-governor Lincoln Chafee signed the consent decree April 8, 2014.

If necessary, the DOJ said, it will present evidence in October that 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.”

Those “rules and incentives” allude to Project Sustainability, a ten-year old fee-for-service reimbursement model that still allocates 40 percent of a recipient’s service hours to segregated, center-based care.

The DOJ said the court should “impose a reasonable fine on the state to incentivize it to rapidly come back into compliance with the Consent Decree, and to compensate for the state’s current underfunding of services.”

The proposed schedule of fines:

• $500,000 on the first day of the month for the first two months after a judicial finding of contempt.

• $50,000 a day, or about $1.5 million a month, beginning on the 70th day after a contempt order. The money would be deposited in a special fund to be used for consent decree compliance. The state should be prohibited from paying the fines out of any funding that otherwise would benefit Rhode Islanders with disabilities, the DOJ said.

McConnell has cleared the week of Oct. 18 through Oct. 22 to hear evidence in the contempt proceedings. The consent decree draws its authority from the Integration Mandate of the Americans With Disabilities Act, as reinforced by the Olmstead decision of the U.S. Supreme Court.

To help remedy any contempt finding and lessen fines, the state could increase the number of supported employment placements and expand the service hours of integrated daytime activities in accordance with the consent decree, the DOJ said.

In a separate step, the DOJ asked McConnell to order the state to prepare a plan for funding and complying with the consent decree before its term ends June 30, 2024. Such a document could help remedy the contempt and, with the court’s approval, could be incorporated in the existing decree.

By its own account, the state has missed its employment targets by more than a third for people in two categories of the consent decree population. They are the “Youth Exit” group, adults who left high school between 2013 and 2016, and the “Sheltered Workshop” group, those who once worked for subminimum wages in sheltered workshops, which were eliminated in 2018.

The chart below, from the state’s report to the court for the quarter ending March 31, shows employment in relation to the latest consent decree targets for a 12-month period. While part of the slow growth during 2020 might be attributed to the COVID-19 pandemic, the state had been falling further behind in previous years.

In another category, only 55 percent of adults are participating in integrated non-work activities in the community for slightly less than ten hours a week, on average, and only a fraction have a combined schedule of employment and other activities in the community filling more than 20 hours a week, according to the latest report of an independent court monitor, cited by the DOJ. In the consent decree, the state agreed to fund services for a total of 40 hours a week.

The DOJ also cited the monitor’s assessment that the state lacks the workers and the funding necessary to provide the services to comply with the consent decree.

Consultants from Approach Group, a Boston-based firm, have calculated the worker shortage at more than a 1000 of the 2845 direct care staff it said are needed to support Rhode Islanders with developmental disabilities in the community.

Separately, Approach Group and three other consultancy firms participated in 18-month, $1.1 million analysis of the developmental disabilities system commissioned by the state that found fiscal instability in the private provider system, which the state relies on for compliance with the consent decree.

The organizer of the four firms, the New England States Consortium Systems Organization (NESCSO), submitted its final report July 1, 2020, to the state Department of Behavioral Health, Developmental Disabilities and Hospitals (BHDDH), laying out various options for alternatives to the state’s fee-for-service reimbursement system.

But the state’s subsequent budget deliberations did not address the NESCSO report or the needs it identified.

Instead, it appeared that BHDDH and Governor Dan McKee’s initial budget proposal responded to a directive from the Office of Management and Budget for a 15 percent budget reduction across the board.

In the end, Judge McConnell ordered state officials and providers to negotiate a wage hike in an effort to attract more workers.

As a result, the General Assembly set aside $39.7 million in the current budget for raises of $2 to $3 an hour for front-line workers and their supervisors, effective July 1. McConnell also has ordered that entry-level wages climb to $20 by 2024 to make Rhode Island competitive with neighboring states in what is a nationwide shortage of caregivers.

While the state is facing the prospect of hefty fines beginning as soon as November, BHDDH is seeking further study of the needs of adults with developmental disabilities.

Despite NESCSO’s detailed analysis and presentation of options for systems change, BHDDH reported to the court in July that “efforts are underway to draft an RFP (request for proposals) for a Systems Rate Review.

“The focus of this Rate Review will be to take an in-depth look at how services are funded in the Adult DD System to determine if the funding is adequate; if the appropriate services are being funded; and to look at new services categories,” the state’s report to McConnell said.

To read the DOJ’s proposed contempt order, click here.

To read the DOJ’s motion for contempt, click here.

To read the DOJ’s arguments for contempt, click here.

For charts supporting the DOJ’s arguments, click here.

RI Has Missed Two Court-Ordered Deadlines For Holding Troubled Fedcap Agency Accountable

By Gina Macris

Continuing difficulties at the former sheltered workshop that stood for everything wrong with Rhode Island’s developmental disability system have caused new noncompliance problems for the state in U.S. District Court. 

The problems revolve around one private agency, Community Work Services (CWS), a program of the New York-based Fedcap Rehabilitation Services. But the state is accountable to the court for the way it manages its service vendors and for ensuring that adults with developmental disabilities receive high quality supports under provisions of 2013 and 2014 agreements with the U.S. Department of Justice (DOJ).

 In both settlements, Rhode Island agreed to end segregation of adults with developmental disabilities – a violation of the Americans With Disabilities Act (ADA) – and instead to offer them the choice of supported employment and integrated non-work activities.

Community Work Services (CWS) was hired in 2013 to correct ADA violations at the former sheltered workshop, Training Through Placement (TTP.)  But CWS itself has operated under one form or another of state supervision for 17 months and nearly lost its license earlier this year.

Missed Deadlines

According to the latest report of a federal court monitor, the state has missed two deadlines; one, a July 30 date for improving the quality of individual career plans and another, June 30, for verifying the accuracy of data reported by CWS on its clients’ progress. 

Despite the state’s efforts to resolve inconsistencies in data, “problems continue to exist with the information provided by CWS,” according to a Sept. 7 report  by the monitor, Charles Moseley, to U.S. District Court Judge John J. McConnell.  

The state, the monitor, and the DOJ use that data to determine whether CWS is following the requirements of the ADA agreements. 

Blueprints For The Future

And so-called “career development plans” are not supposed to be just paperwork, but blueprints that allow officials to see in an instant how the services a client currently receives fit into individualized short-term and long-term goals. 

The plans are intended to reflect a key principle embodied in the ADA; that people with disabilities have choices in how they live their lives.  

The monitor also said 70 percent of the clients’ career plans were “unacceptable” and had not been improved in the month after the judge’s July 30 deadline, despite the state’s efforts.

For most of the 64 Individuals who are active CWS clients, the daily activities and yearly individual service plans didn’t line up with the long-range career development plans, according to Moseley.  

In other cases, the long-range plans were “well done”, but the plans were “not being implemented in a manner which aligns with the participants’ interests,” Moseley said.

Neither the DOJ nor the judge have responded on the record to Moseley’s latest findings, although McConnell has said in the most recent hearing on the so-called “interim settlement agreement” of 2013 that he considers himself personally responsible for defending the rights of about 125 individuals protected by the agreement.

Former State Official Now Heads CWS

Community Work Services, a Boston-based agency, came to Rhode Island in 2013 as a program of Fedcap, hired by Craig Stenning, then director of the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) to get a jump start on turning around the state’s developmental disability system in the wake of the interim settlement agreement of 2013 and the broader consent decree of 2014.

Between 2013 and 2014, Fedcap was awarded a total of about $1.7 million in state contracts. In 2015, Stenning joined Fedcap’s senior management.

As part of the state’s arrangement with Fedcap, CWS took over Training Through Placement (TTP), which had used the Birch Academy at Mount Pleasant High School as a feeder program for its sheltered workshop. There, adults with developmental disabilities performed repetitive tasks at sub-minimum wages, sometimes for decades, even when they expressed a desire to do something else.

At the hearing in May, Moseley, the monitor, told the judge that the number of former TTP clients who have found regular jobs in the community has remained “essentially flat” for the last four years. Most of the former TTP clients still received services from CWS. 

At that point, CWS itself had operated under one or another form of state supervision since May, 2016, for both programmatic deficiencies and substandard facilities at the former TTP building in North Providence.

CWS Nearly Lost License

In his most recent report Sept. 7, Moseley disclosed that state officials had notified CWS in early May – about two weeks before the federal court hearing - that they intended to revoke the agency’s license. But state officials changed their minds after a conference with CWS representatives, the monitor said.

Instead of revoking the license, the state Division of Developmental Disabilities (DDD) decided to give CWS one last chance by continuing the agency’s probationary status from July 1 to Sept. 30, with the possibility of only one more extension, until Dec. 31. The current status of the license is not clear. 

Moseley said CWS has brought on new staff, including a deputy director, a job developer and a new position with responsibilities for data and reporting.

According to the CWS website, it also has a new executive director, Craig Stenning, Fedcap’s Senior Vice President for the New England Region and the former BHDDH director.

Less than a year after Stenning’s departure from BHDDH – Governor Gina Raimondo failed to reappoint him – the DOJ and the monitor asked the U.S. District Court for assistance in enforcing the companion agreements of 2013 and 2014, citing a lack of progress by the state.

As a result, McConnell took up the combined cases and held the first hearing in January, 2016. Since then, he has held periodic reviews from the bench.   

Extensive State Oversight

Moseley’s Sept. 7 report described the extensive state supervision dedicated to CWS.  Licensing officials make monthly regulatory reviews of CWS. In addition, there are unannounced monthly visits coordinated with the state’s chief quality improvement officer for developmental disabilities. Supplementary phone calls and emails from state officials to CWS occur at least once a week.

Meanwhile, the state’s chief employment officer for developmental disabilities provides on-site technical assistance to CWS job developers, reviewing day-to-day activities and observing so-called “person-centered” planning meetings that are designed to put the needs and preferences of the clients first.

In earlier reports, Moseley has said the state simply does not have enough personnel to provide a fully functioning quality assurance program across the board to verify that some three dozen service providers are complying with the “person-first” principles and practices of the ADA. He has required DDD to take steps to create one.

DDD has 24 caseworkers and a handful of supervisory personnel and support staff to manage the needs of a total of about 4,350 individuals.  (About 3,700 receive day-to-day services,)

After learning that there had been little change at CWS since 2013, McConnell said he was angered on behalf of those who are “years late in terms of getting the services that the state agreed to,” according to a transcript of the hearing on May 23.

Addressing lawyers and state officials before him, he said, “The truth is that we all, you and you and me and then everybody else, have these hundred-odd people’s rights in our hands. “

McConnell continued. “I don’t take that lightly. I will use whatever powers that I have available to me to ensure that those individuals aren’t forgotten. Dr. Moseley always reminds me that we’re talking about individuals here and not alphabet soups and programs and whatnot. And this time it’s got to stick.”

Praise For Providence and Mount Pleasant

McConnell concluded on what he described as an “optimistic note” for officials of the city of Providence, who during the last few years have made substantial changes at Mount Pleasant High School, enabling special education students who otherwise would have been completely isolated to become part of the broader student body and to have school-to- work experiences in the community.

“Keep up the good work,” the judge told school and city officials. “It doesn’t mean you’re at the finish line, but you’ve showed us that it can be done.” 

A version of this article also appears in ConvergenceRI