Judge Losing Patience With RI in Disabilities Case

Federal court building on Kennedy Plaza in Providence, RI

By Gina Macris

An increasingly impatient federal judge warned March 14 that unless the state of Rhode Island shows progress soon in complying with terms of the so-called “sheltered workshop” consent decree of 2014, he is likely to impose sanctions.

 “To say I’m frustrated with the lack of progress is an understatement,” said Judge John J. McConnell, Jr.

“I’m not going to allow much procedural rollout before they (the state) will be sanctioned for non-compliance,” he said.  He did not elaborate.

The chief issue is a lack of money to implement the supports necessary to help people with developmental disabilities gain employment and participate in other non-work activities in their communities, as required by the consent decree.

The decree affects a total of about3,600 Rhode Island residents with disabilities, many of whom had been in sheltered workshops making sub-minimum wages in violation of Title II of the Americans with Disabilities Act. The requirements of Title II were spelled out in 1999 in a landmark U.S. Supreme Court decision entitled Olmstead v. L.C.

McConnell asked the lawyer for the U.S. Department of Justice (DOJ), Nicole Kovite Zeitler, why the DOJ had not already filed a contempt motion. 

Zeitler noted that at the previous status conference Jan. 26, the judge had indicated a willingness to work with both sides on cooperative measures short of contempt.

McConnell’s question also prompted a discussion ofshort-term deadlines the judge already has put in place that could lead up to a contempt finding if the state misses them.                                                                                                                       

By April 1, the state is to submit a status report on compliance that reflects a coordinated effort among the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH), the Rhode Island Department ofEducation (RIDE), and the Office of Rehabilitative Services of the Department of Human Services (ORS).  The report is intended to help the judge evaluate compliance.

On April 8, the heads of the three agencies, as well as the director of the state’s Office of Management and Budget (OMB), are to appear in court to produce evidence of compliance in a formal hearing.  If, after hearing the evidence, the judge finds the state must take additional steps, he will issue an order listing remedial actions.

DeSisto and DOJ lawyers originally proposed the compliance report be submitted by April 11 and the hearing be held April 18, but McConnell has moved each of those deadlines up by ten days.

Among other things, the latest order requires the state to present evidence that there is a defined budget for implementation of the consent decree that can link expenditures to results for specific individuals.

The court monitor for the case, Charles Moseley, who spoke by a telephone hookup to the hearing, said that while employment placements have increased, it appears those results have been achieved by community-based agencies acting independently of the consent decree. 

“The persons who have been placed have not been placed as a result of the budget but in spite of the budget,” Moseley said.

Like the judge, Moseley, Zeitler, and DeSisto each expressed their frustration with the lack of system-wide progress in implementing the consent decree, which has specific requirements and deadlines. 

Compliance is likely to come “late and piecemeal instead of on deadline,” said the DOJ’s Zeitler.

For example, she said, the consent decree required the state and the Providence School Department to help secure employmentbyJuly 1, 2015, of a total of  50 recent high school graduates who received special education. But so far, only 21 of them have been placed – less than half.

“Right now, we are at a bit of a crossroads,” Zeitler said.

The one bright spot cited during the hearing was appointment of Mary Madden as the secretary-level coordinator of the consent decree, with authority over the state agencies responsible for implementing its requirements. Madden was appointed at the end of January by Rhode Island Health and Human Services Secretary Elizabeth Roberts. Madden serves in an acting capacity.

 “I have a little ray of hope” that she’ll bring leadership to the state’s efforts, McConnell said.

Madden “in a short period of time has jumped into this,” Moseley said.

Madden, well known in the developmental disability community, is a policy fellow at the Paul V. Sherlock Center on Disabilities at Rhode Island College, where she has conducted research on public policy issues such as inclusion, employment, self-determination, and the design of systems of care and support.

A seasoned administrator with 30 years’ experience, she was president and CEO of the J. Arthur Trudeau Memorial Center from 2003 to 2012 and executive director of the Ocean State Association of Residential Resources from 1987 to 2003.

Madden is also owner of M-CUBED Consulting in Narragansett, which helps non-profit developmental disabilities organizations with strategic planning, program design, and team building. 

RI Senate Committee Gets a Taste of Complex Federal Consent Decree

Charles Moseley, independent federal Court Monitor, left, and RI. Sen. Joshua Miller, D-Cranston and Warwick, chat after Feb. 25 briefing on federal consent decree requiring community integration of people with developmental disabilities. 

By Gina Macris 

Members of a Senate committee began to grapple with the complexities of a federal court case that has the potential to require the state to allocate millions of dollars to reform its services to Rhode Islanders with disabilities.

For an hour on Feb. 25, The Health and Human Services Committee was briefed about a federal consent decree that requires the state to give those with disabilities a chance to work and do other meaningful activities in the community.

 After the briefing, committee chairman Joshua Miller, D-Cranston and Warwick, said it wasn’t clear to him whether the state agency responsible for services to adults with developmental disabilities needed to reorganize, or whether a greater overall allocation is needed to comply with the consent decree.

“At any point will the decree require minimum funding?” Miller asked Charles Moseley, the independent Court Monitor in the federal case.

 Moseley replied that “the consent decree requires minimum funding now.”

Moseley said the “minimum funding” relates to activities necessary to achieve compliance, like an official to coordinate employment services, so that more people who need supports can get “up and working” in the community.

He gave other examples, saying that the key areas are employment and other meaningful non-work activities.

A. Anthony Antosh, director of the Sherlock Center on Disabilities at Rhode Island College, presented statistics which show a smaller percentage of people with developmental disabilities were working in the community in 2015, a year after the consent decree was signed, than were in supported employment in 2011, the year the General Assembly enacted a 13 percent budget cut in services that support them.  

The employment figure decreased from about 23 percent to about 21 percent in four years’ time, according to Antosh’ figures.

“What has increased is the number of people who are essentially doing nothing” during the day, he said.

“Roughly 40 percent are 50 or over, and most of them have very little to do,” Antosh said.

Moseley said that “if the investment is not made now, (the goals) won’t be met in ten years,” the lifespan of the consent decree.

But Moseley did not provide Miller with a dollar amount. 

In a hearing before U.S. District Court Judge John J. McConnell Jan. 26, both Moseley and the lawyer for the U.S. Justice Department, Victoria Thomas, said flatly that the current state budget does not contain enough money to fulfill the requirements of the consent decree.

And a week later, Governor Gina Raimondo made the same categorical statement in her budget message to the General Assembly.

Raimondo’s budget proposal asks for an additional $8 million in in developmental disability funding funding in the current fiscal year, bringing the budget to $237.7 million by June 30. The increase is designed to shore up the developmental disabilities division in the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH).

In the coming fiscal year, developmental disabilities would receive slightly less, $235.2 million under the governor's plan. However, the administration is proposing a way to sharply increase spending for community-based supports that are required by the consent decree without requesting another budget hike. Instead, the increase would be funded by savings that the administration hopes to achieve through major changes to residential programs, asking 500 adults with disabilities to move voluntarily from expensive group homes into shared living arrangements with families.

Professional Workforce Key to Implementing Consent Decree in Rhode Island

By Gina Macris

Rhode Island faces a crisis in its inability to recruit and retain a high quality front-line workforce to support people with developmental disabilities. 

The problem - substandard working conditions and low pay in a poorly trained workforce plagued by high turnover - must be resolved if the state is to implement a landmark 2014 consent decree with the U.S. Department of Justice that requires dramatic changes in the way services are configured.  

That was the consensus Feb. 23 during the start of a two-day conference at Rhode Island College, where some 75 employers, researchers, state officials and family members brainstormed about how to jumpstart a new way of doing things – and getting the funding necessary to make it happen. 

Maria Montanaro, director of the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH)  wondered aloud if her agency could shift funding in the short term to roll out a high-quality pilot program demonstrating the need for better funding of the entire system.                                                               

With perhaps a quarter of the state’s 20 private developmental disability providers participating, she said, the pilot program would offer better salaries and training to motivate staff to show ways that services can be changed to support individual needs rather fit people with developmental disabilities into existing programs.  

That change is a pivotal element in requirements of the Consent Decree that mandate individualized supports in community-based settings.    

Montanaro said a successful pilot program would yield research data that could be leveraged into advocacy for increased funding system-wide during the2017 General Assembly session.  Such a pilot program would not require legislation, she said.  

Montanaro responded to a presentation at Rhode Island College (RIC) by Amy Hewitt, a Minneapolis researcher with a national reputation in identifying effective practices for helping people with intellectual and developmental disabilities live and work in their communities. 

Hewitt, director of the Research and Training Center on Community Living at the Institute of Community Integration at the University of Minnesota, set the tone for discussing advocacy strategies that are based on research statistics gleaned in the implementation of new policies.  

She was hosted by her counterpart in Rhode Island, A. Anthony Antosh, director of RIC’s Sherlock Center on Disabilities, which is charged through the consent decree with showing the way toward greater community integration.  

Montanaro said, “We have to get the advocacy voice mobilized in Rhode Island” so that the message of the disability community gets to the legislature “in a cogent and compelling way.”  

She said she is in a position to speak to Governor Gina Raimondo, but in the executive branch, “they’re responding to the legislative temperament.”  

Governor Raimondo’s latest budget proposal, now before the legislature, asks for some additional funding for developmental disabilities. To a greater degree, however, it would shift residential supports from expensive group home care to less costly shared living arrangements in private homes and use the savings to support employment and other community-based activities.  

The state also could leverage additional Medicaid money in creative ways to provide community-based services, Montanaro said.  

Mary Madden, the state’s new interim Consent Decree Coordinator, noted that expanding the use of Medicaid money still would mean convincing the state to pay for half the new funding.  According to Medicaid rules, the federal government pays for about 50 percent of allowable services, as long as states pick up the other half.  

Hewitt, meanwhile, said legislation and litigation drive public policy, with lawmakers responding only when the the data backs up the argument for change.  

 “The happy stories are not going to get money,” she said. Policy makers don’t make decisions based on the “feel-good stuff. That’s the realist in me talking. They make decisions based on unmet need” that is supported by statistics.  

“We expect the direct service professional to be a little bit of everything,” Hewitt said, referring to the formal title of front-line worker.

The job encompasses the role of teacher, nurse, psychologist, occupational and physical therapist, counselor, nutritionist, chauffeur and personal trainer all at once, she said. 

Yet direct service professionals are paid an average of a little less than $11 an hour in Rhode Island, she said. 

“You have to figure out a way” of changing perceptions so that “these people are not thought of as workers but professionals,” she said.  

The workforce problem in the field of developmental disabilities runs nationwide, Hewitt said.  

“No state has solved this problem, but there are few states further along the path,” she said.  

Hewitt offered a myriad of statistics that link training, supportive supervision, and decent pay to a stable, high-quality workforce that makes a difference in the lives of people with developmental disabilities.  

She is to return Feb. 24 to serve as a resource as the group of about 75 works on specific strategies for stabilizing and improving the system in Rhode Island.  

The conference participants are mostly senior officials of the private agencies that provide services to almost all the 3600 people with developmental disabilities in Rhode Island.  No front-line staff attended.  

Pam Goes, the mother of an adult with developmental disabilities, said families need to be included in policy-making and advocacy statewide.  

“Right now families feel isolated and apart,” said Goes, who is also a former family support director at the Trudeau Center in Warwick.