Coalition Seeks $100M To Fix RI Caregiving Crisis

By Gina Macris

Rhode Island Governor Dan McKee and the leadership of the House and Senate say they are working on solutions to the staffing crisis that has constricted access to healthcare and social services for people of all ages with disabilities or special needs.

McKee made his first move Oct. 7 by proposing a wide-ranging budget amendment that includes $12.5 million in retention bonuses for direct care staff of private providers of services to children in state care, and another $5.5 million to stabilize early intervention services to very young children with developmental disabilities and their families.

Four of nine agencies providing early intervention services have stopped taking new cases, the governor said. One in four families slated for early intervention in 2020 did not complete the program. And since the start of the pandemic, there has been a 30 percent reduction in beds available to the Department of Children, Youth, and Families (DCYF), leaving some children in hospital psychiatric programs where they do not belong, and creating waiting lists for services.

The statement from McKee’s office said the situation has left DCYF in jeopardy of violating Family Court orders on placing children in residential programs consistent with their therapeutic needs.

These targeted increases, totaling $18 million, amount to “the tip of the iceberg” in addressing the labor shortages and service gaps affecting all of the state’s most vulnerable populations, says a spokeswoman for a coalition of 70 human service organizations with about 35,000 to 40,000 employees.

Tina Spears said $100 million is the minimum the state must invest to stabilize the workforce serving children and adults with developmental disabilities, youth and adults with substance abuse and behavioral healthcare needs, those with other mental health issues, and elderly people trying to remain in their own homes. Spears is executive director of the Community Provider Network of Rhode Island, a trade association whose members provide developmental disability services.

A day before McKee released the budget amendment, a spokeswoman for the governor, in response to questions from Developmental Disability News, said that he and his team “absolutely understand there are workforce challenges affecting our health and human service providers, and recognize the need for federal funding to ensure access to services for Rhode Islanders.”

And spokesmen for House Speaker Joseph Shekarchi and Senate President Dominic Ruggiero said, in a joint statement, that the two leaders are “aware of the crisis and working with their colleagues and stakeholders. They are willing to consider solutions.”

McKee’s overall spending plan totals $113 million. It would mark the state’s first use of its $1.1 billion allocation from the American Rescue Plan Act (ARPA). The governor characterized it as a “down payment” on Rhode Island’s future.

He proposes that $32 million go to small business, $13 million to the tourism and hospitality industry, $29.5 million to affordable housing and $38.5 million to the human services, including early intervention and children in DCYF care, as well as child care providers, and pediatric health care providers.

Rhode Island is the only New England state that has not spent any of its ARPA allocation.

In a letter to General Assembly leaders and the governor last month, the coalition of human service providers referred to other potential sources of additional aid. The organization asked the state to stretch the state’s investment in the human services workforce by using an enhanced federal Medicaid reimbursement rate for home and community services and dipping into a $51-million budget surplus for the fiscal year that ended in June.

“We simply cannot wait to respond to the current crisis until January, particularly when there is funding available today,” said Spears.

The pandemic has exacerbated a pre-existing worker shortage to crisis proportions, threatening the collapse of the privately-run network of services that in many cases, recipients are entitled to by law.

Higher caseloads and stressful conditions “have led to increased turnover, lower morale, and unparalleled levels of burnout among existing staff,” the coalition wrote in a letter to the governor and General Assembly leaders in late September.

The coalition leaders are Spears, Susan A. Storti, President and CEO of the the Substance Abuse and Mental Health Leadership Council of Rhode Island, and Tanja Kubas-Meyer, executive director of the Rhode Island Coalition for Children and Families.

The state of the developmental disabilities system, which is involved in a federal court case, illustrates the challenges faced by all the caregiving organizations across the board.

In January, 2020, two months before COVID-19 struck Rhode Island, the state’s own consultants found that some three dozen private providers of developmental disabilities services were on shaky financial footing because of inadequate funding to attract and retain enough skilled, trained workers.

In April of this year, some of the same consultants, who were no longer working for the state, found that adults with developmental disabilities living with their families experienced about a 72 percent reduction in the duration of support services they had before the pandemic.

Those in shared living and independent living situations had service reductions of 57 and 49 percent, respectively, according to the consultants.

While the General Assembly approved funding effective July 1 which raised the pay of direct care workers and their supervisors about $2 to $3 an hour, it is not known what impact, if any, the increases have had on attracting new staff.

Connecticut, Massachusetts, and Rhode Island’s own state-run group home system all pay more than the $15 to $15.75 an hour that employees of the private agencies now receive.

An independent court monitor found that the state’s failure to maintain an adequate workforce continues to violate a 2014 consent decree calling for the overhaul of the service system to provide adults with developmental disabilities individualized support services to help them become part of their communities.

With many adults with developmental disabilities sitting at home for much of the week, and only two and a half years remaining in the term of the consent decree, the state’s next steps remain unclear.

Unless Rhode Island can reach an out-of-court agreement with the monitor, the U.S. Department of Justice, and the Chief Judge of the U.S. District Court, the state must defend itself against civil contempt charges in a hearing that begins Oct. 18. If it is found in contempt, the state faces fines of up to $1.5 million a month.

DOJ, RI Spar Over Contempt In Olmstead Case

Federal Courthouse in Providence

By Gina Macris

The state of Rhode Island told a judge it cannot be held in contempt of a 2014 civil rights consent decree seeking to integrate adults with developmental disabilities in their communities because of circumstances beyond the state’s control.

But the U.S. Department of Justice (DOJ) says that the state has only itself to blame for its failure to comply.

The state’s “persistent choices to under-fund the system have created a dramatic provider shortage” that has left the target population isolated, the DOJ said in a counter-argument submitted Friday, Sept. 10, to the U.S. District Court.

The “refusal to adequately fund the Consent Decree is precisely the kind of self-imposed inability to comply” that undermines the state’s arguments in its defense, the DOJ said.

The decree stems from a 2014 finding by the DOJ that the state violated the Americans With Disabilities Act by relying too much on sheltered workshops paying sub-minimum wages and isolated day care centers, which kept people with disabilities out of mainstream society. The Olmstead decision of the U.S. Supreme Court has re-affirmed the rights of people with disabilities to receive support in their communities to give them a chance to live regular lives.

The DOJ further cites warnings of an independent court monitor a year ago that the state will be unable to comply with the consent decree by 2024 unless it came up with a multi-year plan to overhaul its developmental disabilities system, which for a decade has encouraged segregated care over integrated services. Such a plan has not been forthcoming.

The state’s lawyers, Marc DeSisto and Kathleen Hilton, submitted arguments Sept. 1 in response to a DOJ motion two weeks earlier that asked the Chief Judge of the U.S. District Court to find the state in contempt of the consent decree and impose fines ranging up to $1.5 million per month. Chief Judge John J. McConnell, Jr. has scheduled a hearing the week of Oct. 18 through Oct. 22.

The state’s lawyers maintained the state could not meet benchmarks for integrated employment and other criteria because of the COVID-19 pandemic, as well as resistance by adults with developmental disabilities themselves to work and non-work activities in the community.

But in its reply Sept. 10, the DOJ said the state’s characterization of the population “paints an inaccurate and offensive picture of people with developmental disabilities” and “reflects a profound misunderstanding of the nature, purpose, and obligations of the Consent Decree.”

DeSisto and Hilton, meanwhile, also argued that numerical targets for employment of adults with disabilities were not required by the consent decree, even though, as the DOJ said, documents show that state officials have admitted the opposite in numerous statements to the court since 2014, in writing or in person..

The state’s lawyers also maintained the state cannot be held in contempt until after the agreement expires on June 30, 2024 – an interpretation the DOJ said is unheard of in litigation involving system-wide reform.

In picking apart the state’s position over 28 pages, the DOJ said the state is urging the court “to adopt an interpretation of the consent decree that is “at odds with the decree’s text and purpose,” the DOJ said.

The state maintained the consent decree “imposed what could only be described as a cultural shock on the targeted community. After years of receiving services in “non-community” settings, “they are being told that their lifestyle must change,” the state’s lawyers said.

The DOJ disagreed. Rather than being told what they must do, the DOJ said, those eligible for services and their families have the right to make informed choices after receiving education and support about what working and enjoying leisure activities in the community might mean for them.

The state’s own data show that it “dramatically overstates” the resistance to integrated services, with 80 of 1,877 persons, or 4 percent, opting out of integrated services through a formal variance process, the DOJ said. And it cited a report from a court monitor in 2016 who had said he found “strong broad-based acceptance of the goals and desired outcomes of the consent decree.”

Similarly, the DOJ lawyers rejected the state’s argument that the COVID-19 pandemic prevented compliance with the annual employment targets in the consent decree. The pace of new job placements had slowed significantly more than a year before the onset of COVID-19, the DOJ said.

While the pandemic did make compliance more challenging, the state made “minimal efforts” to serve the consent decree population during the pandemic, the DOJ’s civil rights division argued.

“Given the availability of enhanced federal matching funds for providing integrated Medicaid services like those the Consent Decree requires, the State has the opportunity to increase funding for integrated employment services, provide the full amount of integrated day services to each target population member, and enhance wages to attract the required number of service providers,” the DOJ said. Its memorandum is signed by Rebecca B. Bond, chief of the DOJ’s civil rights division, as well as trial attorneys expected to litigate the case in October.

The state did earmark $39.7 million in federal-state Medicaid money to raise the wages of workers and their supervisors by $2 to $3 an hour in the current budget, a roughly 15 percent increase, but only at the conclusion of court-ordered negotiations between state officials and providers.

DeSisto and Hilton, the state’s lawyers, also said the state is finalizing the language in a request for outside proposals “for evaluation and implementation of new rate and payment options for (the) Developmental Disabilities Services System.” The preparation for the request for proposals indicates that BHDDH plans to go out to bid through the state purchasing system, which can take several months.

The state last conducted a rate review in 2010 and 2011, but the General Assembly did not follow the recommendations of the consultant, Burns & Associates. Instead, it set dozens of reimbursement rates for private providers roughly 17 to 19 percent lower than Burns & Associates recommended, with the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) saying that it still expected providers to maintain the same level of service.

In November 2018, a principal in Burns & Associates, Mark Podrazik, testified before a special legislative commission that that a rate review was already overdue. Rates should be reviewed every five years, he said.

A few months later, BHDDH hired NESCSO, the nonprofit New England States Consortium Systems Organization, to analyze Rhode Island’s developmental disabilities system from top to bottom.

Although the NESCSO contract called for a rate review and analysis of alternatives to the state’s fee-for-service reimbursement system, NESCSO was asked to present options for change but to make no recommendations.

The BHDDH director at the time, Rebecca Boss, said the department wanted to expand its analytical capability and make its own choices going forward.

The 18-month contract, which cost $1.1 million, produced a final report and supplementary technical materials which, among many other things, said the provider system was significantly underfunded. Since the report was completed July 1, 2020, BHDDH has remained silent on its findings, and has not exercised options for renewal of NESCSOs services.

In their memorandum, the state’s lawyers said that “the intention of the rate review process is to strengthen the I/DD system and services provided to individuals, as well as to address provider capacity to deliver those same services. Thus, the State can and will at hearing clearly demonstrate that it has been ‘performing its obligations’ under the various sections of the Consent Decree.”

The DOJ has scoffed at that notion. The DOJ said in its original filing in August that it is prepared to show the “State failed even to ask its Legislature for a sufficient appropriation, and that the State 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.

Employers Advancing DD Worker Raises While State Updates Reimbursement System

By Gina Macris

Most providers of services for adults with developmental disabilities in Rhode Island have passed along wage increases enacted by the General Assembly for the fiscal year that began July 1, even though the state’s developmental disabilities agency has not yet programmed the higher rates into its reimbursement system.

The raises, negotiated between state officials and representatives of some three dozen private provider agencies under pressure from the U.S. District Court, increase hourly wages for direct care workers by more than $2, from about $13.18 to an estimated $15.75 per hour, depending on variations in payroll taxes and other employer costs related to employment.

The General Assembly approved hikes of well over $3 for supervisory personnel, from $18.41 to $21.99 an hour.

Providers who can afford it are “floating” the pay hikes to staff for a few weeks with the assurance that they will be reimbursed when the increases are fully implemented by the state’s Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH), said Tina Spears.

“Providers are desperate for staff,” said Spears, executive director of the Community Provider Network of Rhode Island (CPNRI), a trade association representing about two dozen private agencies. The worker shortage, exacerbated by the pandemic, has increased employers’ overtime costs and forced many supervisors to provide direct care.

The General Assembly set aside $39.7 million in the BHDDH budget for the raises and “associated payroll costs,” which BHDDH says should put the “minimum” pay at $15.75 an hour for direct care workers and $21.99 an hour for supervisors.

But providers say the mathematical formula BHDDH uses to calculate the minimum pay doesn’t allow enough for the added payroll taxes employers must pay every time they hire a new staffer or give someone a raise.

Spears said providers are making every effort to pass on as much of the extra money as possible to their employees. Everyone should be making at least $15 an hour, she said.

In a newsletter last week, BHDDH officials encouraged those “self-directed” individuals or families managing a loved one’s individualized program to advance raises to the workers they hire even though their funding authorizations have not yet been adjusted to reflect higher rates. Self-directed individuals, who do not have overhead, pay more than the provider agencies but don’t offer benefits.

It’s not yet clear whether the pay hikes will be enough to cut into the workforce deficit, one of the reasons holding BHDDH back from implementing requirements of a 2014 consent decree mandating that adults with developmental disabilities be integrated in their communities.

Massachusetts and Connecticut both pay higher hourly rates than Rhode Island for similar jobs, one factor that is said to contribute to the state’s worker shortage.

A consultant has estimated that Rhode Island needs at least 1000 more individuals working with adults with developmental disabilities to implement the consent decree. The worker shortage is one of several reasons the Chief Judge of the U.S. District Court, John J. McConnell, Jr., has scheduled a week-long hearing in mid-October to gather evidence for holding the state in contempt for its failure to overhaul its developmental disabilities system as required by the consent decree.

RI State Budget Advances; DD Forum Thursday

By Gina Macris

The Rhode Island Senate Finance Committee will hold a hearing Wednesday, June 30, and is expected to vote on the $13.1 billion state budget for the next fiscal year – including language which sets aside $39.7 million for raises for caregivers of adults with developmental disabilities and their supervisors.

The new fiscal year begins just hours after the expected vote, on Thursday, July 1. The full Senate could act as early as July 1, sending the state’s annual revenue and spending plan to Governor Dan McKee for his signature. Historically, there has been little change to the budget once it clears the House and goes to the Senate.

The public may submit written testimony to the Senate Finance Committee prior to 2 p.m. Wednesday, the starting time for the public hearing. Email the testimony to jplume@rilegislature.gov

the meeting will be will be streamed live online through Capitol TV.

The raises for entry-level workers, from $13.18 to an estimated $15.75 per hour, take effect July 1, but it’s not clear when direct care staff will see them in their paychecks. Supervisory rates are expected to increase from $18.41 to $21.99 an hour.

Tina Spears, executive director of the Community Provider Network of Rhode Island, said earlier this week, “We are working hard to ensure the system is ready on July 1 so we can get the raises out the door in July.”

BHDDH has not yet responded to a query about the timeline in incorporating the higher rates in reimbursements to the service providers.

Richard Charest

On July 1 from 3 to 5 p.m., Richard Charest, the new director of the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals, (BHDDH) will participate in a virtual quarterly forum of the Division of Developmental Disabilities.

Charest, former President and CEO at the Landmark Medical Center and more recently, a consultant to the troubled Eleanor Slater Hospital, is the fourth BHDDH director in the last six years.

Advocates in Action will host the online forum on behalf of the Division of Developmental Disabilities. To pre-register, go to : https://us02web.zoom.us/webinar/register/8416222159110/WN_0bzY-PPUSLOwu_ad3Ldhzw

RI House To Vote On Pay Hikes For RI DD Workers

UPDATE: On June 24, the House passed a $336.7 million developmental disabilities budget as recommended by the Finance Committee. It is part of an overall overall $13.1 billion spending package proposed for the fiscal year beginning July 1 that now goes to the Senate.

By Gina Macris

Rhode Island would add an estimated $2.53 an hour to entry-level pay for caregivers of adults with developmental disabilities in the proposed state budget that it is headed for a vote in the House Thursday, June 24. But it’s not clear if the wage hike will be enough to attract needed workers.

The proposed wage increase, from an estimated $13.18 to $15.75 an hour, resulted from months-long, court-ordered negotiations intended to develop a three-year plan to strengthen Rhode Island’s private developmental disability system so it will enable the state to comply with a 2014 civil rights consent decree.

The proposed wage package also includes a $3.58 hourly increase for supervisory personnel, from $18.41 to an estimated $21.99 an hour.

The House Finance Committee accepted the negotiated rates during a June 17 vote on the overall budget for the fiscal year beginning July 1. But it rejected Governor Dan McKee’s plan to privatize the state’s own parallel group home system, saying 50 state jobs that would have been eliminated should be restored to the state payroll.

In all, the state and privately-run developmental disabilities systems would get nearly $336.7 million in the fiscal year beginning July 1, an increase of roughly $32.7 million over the current budget of $304 million.

The privately-run system would get a total of $297.6 million, or about $37.2 million more than the current allocation of $260.4 million, according to figures from the Office of Management and Budget (OMB) and the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH).

The higher total reflects the cost of the pay hikes, $39.7 million in federal-state Medicaid funding, including the redirection of $13 million of a $15 million “transition and transformation fund” the McKee had administration originally had proposed for court-ordered system reforms to comply with the consent decree.

Chief Judge John J. McConnell, Jr. of the U.S. District Court had ordered the state to come up with a three-year plan by June 30 that would spell out what it intends to do to comply with the consent decree by the end of the decade-long implementation period June 30, 2024.

In a recent report, an independent court monitor told the judge that the second and third years of the plan were not discussed during the recent negotiations, and he recommended that the state continue to meet with private service providers and others on a weekly basis to discuss unresolved issues.

In a recent hearing before the House Finance Committee’s Subcommittee on Human Services, the director of the Division of Developmental Disabilities, Kevin Savage, said the state has a “difficult” relationship with the federal court.

While providers have called the raises a significant step, they say they do not believe that the new rate of $15.75 will affect their worker shortage when Massachusetts and Connecticut are paying more.

On July 1, minimum wages in Connecticut will increase to $16.50 an hour for private-sector direct care workers in the first year of a two-year contract between that state and the Service Employees International Union (SEIU). The rate will jump to $17.25 on July 1, 2022.

Massachusetts will pay direct care workers at privately-run agencies a minimum of $16.10 an hour beginning July 1, the final year of a three-year contract with another branch of the SEIU, according to a salary schedule on a Massachusetts state website related to “personal care attendants.”

Tina Spears, executive director of the Community Provider Network of Rhode Island, has said in recent weeks that she has recommended data be collected on hiring and retention to enable the court to gauge whether the wage hikes help providers expand their workforce.

As it now stands, the private system lacks about 37 percent of the workforce it needs to support individuals in jobs and non-work activities in the community as required by the consent decree and the Integration Mandate of the Americans With Disabilities Act, according to a recent report made to the court.

In other changes, the House Finance Committee moved up by one year the date for including the developmental disabilities caseload in an important budget-planning exercise, the Caseload Estimating Conference. That means the change would take effect in 2021, instead of 2022.

Judge McConnell has ordered that the developmental disabilities caseload be part of the discussion at the Caseload Estimating Conference beginning November of this year to bring transparency and consistency to budgeting for these services.

House Finance recommended the Executive Office of Health and Human Services give assistance to the BHDDH to prepare the caseload data for presentation at the November conference.

The McKee administration never explained why it originally proposed that the change be made in 2022.

In another court-ordered reform, an OMB spokesman confirmed that the allocation for the privately-run system of services contains $6.8 million to fully fund annual authorizations that set an individual spending limit for each person receiving developmental disability services.

For the last decade, the authorizations have been available on a quarterly basis. Any amount not utilized within a particular three-month period cannot be carried over to the next quarter. And the fee-for-service reimbursement system now in place means that providers cannot bill for those who do not participate on a particular day, for whatever reason, even though the agencies may incur the same costs for staffing.

Providers and service recipients and their families alike say that annual funding will allow them greater flexibility in planning their programs.

"Significant" Raises Proposed For RI DD Workers After Court-Ordered Talks

By Gina Macris

RI Governor Dan McKee’s proposal to raise wages from $13.18 to $15.75 an hour for caregivers of adults with developmental disabilities might prevent a widespread worker shortage from getting worse.

But those who have had the frustrating experience trying to recruit and retain workers at the current lower rate told the House Finance Committee June 10 that the proposed raise, while significant, will not be enough to ease the labor crisis that prevents the state from complying with a 2014 civil rights consent decree affecting adults with developmental disabilities.

Other advocates made the broader statement that that paying a living wage to caregivers of all vulnerable populations is a moral imperative. Raising pay to attract more workers also is essential to guaranteeing the civil rights of vulnerable people, no matter what their disability, they said.

The Integration Mandate of the Americans With Disabilities Act, (ADA), reinforced by the 1999 Olmstead decision of the U.S. Supreme Court, says that those with disabilities have a right to receive the services they need to live regular lives in their communities.

If the state does not adopt a comprehensive Olmstead plan to provide integrated, community-based services to all people with disabilities, it will remain vulnerable to more litigation like the ADA complaint of the U.S. Department of Justice (DOJ) which led to the 2014 consent decree, said a spokesman for the Rhode Island Developmental Disabilities Council.

As it is, Rhode Island’s Director of the Division of Developmental Disabilities acknowledged at the House Finance Committee hearing that the state has a “difficult relationship” with the U.S. District Court and the DOJ over the status of implementation and the unfinished work ahead as the agreement nears its conclusion in 2024.

I/DD Population Sitting At Home

Seven years after Rhode Island signed the consent decree, agreeing to end the segregation of sheltered workshops and day care centers, many adults with developmental disabilities are no better off.

For example, Jacob Cohen of North Kingstown, who once had a full schedule of activities in the community, now gets only three hours a week of support time, his father, Howard, told the Finance Committee in written testimony.

At AccessPoint RI, a Cranston-based service agency, 50 of 109 supervisory and direct care jobs are vacant and 60 out of 160 clients are not getting any daytime services, according to the executive director.

The consent decree calls for 40 hours a week of employment-related supports and other activities in the community.

A consultants’ report commissioned by providers says the private service providers lack 1,081 of the 2845 full time direct care workers they need to carry out the requirements of the consent decree. COVID-19 exacerbated the workforce shortage but did not cause it, the consultants said. The consultants said that depending on living arrangements, persons with developmental disabilities have experienced a reduction in services ranging from 49 percent to 71.6 percent, with those in family homes having the severest cutbacks.

The McKee administration’s proposed $15.75 hourly reimbursement rate would represent a wage hike of about $2.50 or more for direct care workers – roughly 20 percent.

The state does not set private-sector wages directly but reimburses the private agencies for wages and employment-related overhead, like taxes and workers compensation. Some providers pay a little more than the current hourly minimum of $13.18, by subsidizing wages with revenue from other types of services.

In addition to raising direct care worker pay, the proposal would raise reimbursement levels for supervisors’ wages from $18.41 to $21.99. There would be no raises for support coordinators or job developers, who are paid $21.47 an hour. Nor would those in a catch-all “professional” category receive a pay increase. They are paid $27.52 an hour, according to a presentation the House Fiscal Advisor made to the Finance Committee.

The overall wage increase would cost a total of $39.7 million in federal-state Medicaid funding, including $16.8 million in state revenue and $22.9 million in federal reimbursements.

Of the state’s share of the cost, $13 million would be re-directed from a $15 million “transition and transformation fund” for developing systemic reforms aimed at quality improvement and the reimbursement model that pays private providers. The reimbursement model was redesigned a decade ago to favor segregated care and has not been fundamentally changed since then.

Robert Marshall, the spokesman for the Rhode Island Developmental Disabilities Council, warned that gutting the so-called “transition and transformation fund” could heighten the state’s non-compliance with the consent decree and leave it open to additional federal action.

House Fiscal Office

With the governor’s proposed raises included, the allocation to the private developmental disabilities system would jump from $260.3 million in federal-state Medicaid funding in the current fiscal year to $297.7 million, an overall increase of $37.4 million, according to the presentation of the House Fiscal Officer, Sharon Reynolds Ferland.

Tina Spears, executive director of the Community Provider Network of Rhode Island (CPNRI), a trade association which negotiated the wage hike with the state, called it a “notable first step in rebuilding the workforce serving people with intellectual and developmental disabilities.”

SPEARS CPNRI

“This wage increase will improve the lives of both those who do the work and the families who are served by that work,” she said in written testimony.

But Spears, who had pressed for a rate of $17.50 an hour, told the committee that the state’s final offer of $15.75 does not make it competitive in attracting new workers.

Complicating the salary issue, the administration expects the private agencies to accept group home residents from the state-run developmental disabilities system, which it plans to phase out. The current allocation of $29.7 million for state-run group homes, named Rhode Island Community Living and Supports (RICLAS) would be cut to $9 million in the next budget.

Both the unions representing RICLAS workers and the private providers have expressed skepticism that the privatization is feasible.

The budget calls for the reduction of 50 RICLAS positions. RICLAS pays workers a starting rate of about $18.55 an hour, more than $5 above the current entry-level pay in the private system, and about $2.80 above the proposed new private-pay rate.

On July 1, minimum wages in Connecticut will increase to $16.50 an hour for private-sector direct care workers in the first year of a two-year contract between that state and the Service Employees International Union (SEIU). The rate will jump to $17.25 on July 1, 2022.

Massachusetts will pay direct care workers at privately-run agencies a minimum of $16.10 an hour beginning July 1, the final year of a three-year contract with another branch of the SEIU, according to a salary schedule on a Massachusetts state website related to “personal care attendants.”

Massachusetts already siphons off some of Rhode Island’s best caregivers, said Michael Andrade, President of CPNRI and CEO of Pro-Ability at the Bristol County ARC.

Ruggiero Capitol TV

During the hearing, Rep. Deborah Ruggiero asked Jonathan Womer, Director of the Office of Management and Budget (OMB), to tell her who has been leading the state’s response to the consent decree during the last few years and explain why there has been “so little progress.”

She also wanted to know why she’s hearing reports that the state is “not in very good standing” with the Court or the DOJ and what is being done to change that situation.

Womer introduced Kevin Savage, who has been in charge of the Division of Developmental Disabilities since last July.

“While we haven’t met a number of benchmarks for getting people to work” in the community, Savage said, “there are no longer any sheltered workshops in Rhode Island.”

SAVAGE

“That’s a major achievement of the consent decree,” Savage said. He added that because of the pandemic, meeting goals for employment and community integration has been “extremely challenging,”

During state budget preparations, which began last fall during great economic uncertainty, OMB asked state agencies to submit proposals with 15 percent reductions in their spending plans. The economic outlook has brightened considerably since then.

In January, Chief Judge John J. McConnell, Jr. of the U.S. District Court said Rhode Island must raise direct care wages to $20 an hour by 2024 to attract more direct care workers to Rhode Island providers, who do the work in the field necessary to enable the state to comply with the consent decree.

Two months later, in March, the governor submitted a budget proposal that offered no raises. Then came court-ordered negotiations, which resulted in the administration’s proposal for the $15.75 rate, as well as a separate budget amendment that would comply with another court order, making the developmental disabilities caseload part of formal, consensus-building state budget preparations in November of this year.

During the budget hearing, Savage said, “We are having a difficult time in our relationship with the Court. We do want to repair that.”

“We have tremendous respect for the judge and tremendous respect for the court monitor. We work with some of the best providers you can work with, so it’s really not a matter of not wanting to work with the providers or the court monitor,” Savage said.

The negotiations took too long, he acknowledged.

“We need to pick up the pieces and move forward faster,” he said, engaging the community “much more robustly than we have.”

“We need to get to get to $20 by 2024,” to “stabilize the workforce,” and make other reforms as part of a court ordered, comprehensive three-year compliance plan, he said.

Rep. Alex Marszalkowski, D- Cumberland, chairman of the Human Services Subcommittee of the House Finance Committee, asked why the wage increases would apply to group home workers when the consent decree is limited to issues related to daytime services.

Savage responded that “if we stabilize one part of the workforce, we destabilize the other; the only path is to stabilize the entire system.”

Emphasis on Civil Rights

Later in the hearing, Spears, the CPNRI director, emphasized that hard-working caregivers deserve a living wage and noted that “civil rights protections” are at the heart of the 2014 consent decree. “It’s essentially a corrective action plan to resolve civil rights violations and make sure they never happen again,” she said.

She added: “We are seven years into a ten-year agreement, and there is a tremendous amount of pressure from the Court and the U.S. Department of Justice to achieve the established benchmarks.” As it now stands, the private sector cannot deliver on the compliance the state needs, Spears said.

The Chair of the Long Term Care Coordinating Council (LTCCC) and the representative of the Developmental Disabilities Council each applied a broader perspective on the budget amendments, saying the General Assembly must address the workforce and quality-of-life issues across all vulnerable populations.

Maureen Maigret, chair of the LTCCC, recommended the General Assembly use some of the current Medicaid reimbursement rate, enhanced under provisions of the American Rescue Plan Act, to raise the wages of direct care workers funded by Medicaid’s Home and Community Based Services (HCBS) to the same level proposed for those working in developmental disabilities.

“The issues facing other types of home and community-based services and residential programs are similar to providers of services for persons with developmental disabilities,” Maigret said in written testimony, citing low wages, high turnover and staff burnout, all exacerbated by the pandemic.

“And we know that almost a majority of these workers are women and persons of color whose value has historically been under-valued,” Maigret said.

“Efforts to achieve wage parity for all direct care staff working in government-subsidized Home and Community-Based Services (HCBS) is imperative if the state is to have a quality and accessible LTSS (Long Term Services and Supports) system with appropriate options for persons needing care,” she said.

Marshall, of the DD Council, said Rhode Island could use some of the one-time stimulus funding under provisions of the American Rescue Plan Act to develop an Olmstead plan, a multi-year blueprint for conforming to requirements of the ADA’s Integration Mandate.

Only seven states — Rhode Island among them - still lack such a plan, he said.

Because of the Olmstead decision, Medicaid changed the rules of Home and Community-Based Services programs to help vulnerable persons live as independently as possible at home or in home-like settings.

Marshall said Rhode Island has been in violation of Medicaid’s regulations on home and community-based services since 2014 and is “vulnerable to yet another Department of Justice lawsuit or ineligibility for federal Medicaid match.”

RI House Finance Committee To Air Governor’s New Plan To Raise DD Wages

By Gina Macris

Rhode Island Governor Dan McKee has asked the General Assembly to fund hourly pay rates of $15.75 for frontline workers serving adults with developmental disabilities and $21.99 for supervisory personnel.

The House Finance Committee will hold a public hearing on the proposal Thursday, June 10, at the conclusion of the full session of the House, which is not set at a fixed time but usually occurs sometime after 5 p.m.

The budget amendment aims to offer competitive wages to direct care workers in compliance with a 2014 civil rights consent decree, according to a June 7 memo from Jonathan Womer, Director of the Office of Management and Budget, sent to the chairmen of the House and Senate finance committees.

The wage increases would cost a total of $26.7 million more in federal-state Medicaid funding than McKee had originally proposed for the privately-run developmental disability service system in the fiscal year beginning July 1 – nearly $7.8 million in additional state revenue, and almost  $19 million in federal reimbursements.  

McKee also would redirect $13 million in Medicaid funding to the wage package, including $9 million in state revenue and $4 million in federal funding. That means the entire wage package would cost a total of $39.7 million, with federal reimbursements accounting for well over half that figure. Entry-level workers in the privately-run system are now paid about $13.18 to $13.40 an hour, according to various providers.

The $13 million re-directed to wages would come from a $15 million “transition and transformation fund” for initiating systemic reforms to help the shift to integrated, community-based services required by the consent decree. McKee’s proposal would leave the innovation fund with $2 million. (A recent report of an independent monitor to the U.S. District Court recently criticized an earlier state plan that would have eliminated the innovation fund, putting all the $15 million into wages.)

In another matter aimed at consent decree compliance, the proposed budget amendment would move up the date for including the caseload of the privately-run system of developmental disabilities in the semi-annual Caseload Estimating Conference used by the executive and legislative branches of state government to plan state budgets.

The amendment would add these caseload numbers to deliberations beginning November, 2021, as ordered by the federal court, instead of November, 2022., as had been originally proposed by the McKee administration. The inclusion of the developmental disabilities caseload is intended to ensure predictable, consistent funding for these entitlement services funded by the Medicaid program, according to the court order.

Because of COVID-19 public health restrictions, the Finance Committee will not take testimony in person. Instead, it has established rules for those who wish to submit written testimony in advance or pre-register to be called on the phone to submit verbal testimony.

According to the agenda for Thursday’s hearing:

“The meeting will be televised live on Capitol Television, which can be seen on Cox Channels 15, and 61, in high definition on Cox Channel 1061, on Full Channel on Channel 15 and on Channel 34 by Verizon subscribers. It will also be live streamed at http://rilegislature.gov/CapTV/Pages/default.aspx

“WRITTEN TESTIMONY: Written testimony is strongly encouraged and may be submitted via HouseFinance@rilegislature.gov   Indicate your name, bill number, and viewpoint (for/against/neither) at top of message. Due to high volume, clerks are not screening this inbox for verbal testimony requests. This inbox is for written testimony only. DEADLINE: Written testimony should be submitted no later than three (3) hours prior to the posted meeting time. Every effort will be made to share written testimony submitted before the deadline with committee members prior to the hearing. Testimony received after deadline will be sent to committee members and posted to the website as soon as possible. For faster processing, it is recommended that testimony is submitted as a PDF file. Testimony will be posted on the General Assembly website, http://www.rilegislature.gov/Special/comdoc/Pages/HFIN.aspx

“VERBAL TESTIMONY: Due to the extremely high volume of requests, and in order to accommodate as many constituents as possible, please take note of the revised procedure for verbal testimony:

“DEADLINE: Requests for verbal testimony must be submitted via the link, by 4:00 PM on Wednesday, June 9, 2021. For verbal testimony requests, CLICK HERE  

“Verbal testimony accepted on any bill scheduled for "Hearing and/or Consideration" only The committee is unable to designate a specific time that you will be called. In the event you are unavailable when called, witnesses are urged to submit written testimony. Christopher O'Brien Committee Clerk 222-6916 HouseFinance@rilegislature.gov  “

DiPalma: $184 M DD Wage Settlement In CT Should Guide RI Talks

DiPalma Photo by Anne Peters

By Gina Macris

Will higher wages for workers who help persons with developmental disabilities in neighboring Connecticut and Massachusetts force increased pay for similar workers in Rhode Island?

State Sen. Louis DiPalma says they should; particularly a two-year contract settled just a few days ago in Connecticut that gives frontline workers $16.50 an hour in the fiscal year beginning July 1 and $17.25 in July, 2022.

While leaders of private agencies in Rhode Island that provide services to persons with disabilities have tentatively agreed to a $15.75 reimbursement rate for entry-level caregivers, they did so reluctantly, saying that it’s not competitive enough to help them stabilize or expand their workforce.

And it’s not yet known whether that figure is acceptable to Chief Judge John J. McConnell, Jr. of the U.S. District Court, who has involved himself in workforce issues because they are connected to the state’s compliance with a 2014 civil rights decree requiring the integration of adults with developmental disabilities in their communities.

DiPalma, a strong advocate for those with disabilities and an influential legislator, said in a telephone interview with Developmental Disability News that the $15.75 hourly reimbursement rate the private providers tentatively accepted from the state is “necessary but not sufficient.”

Connecticut’s eleventh-hour settlement with the Service Employees International Union (SEIU) averted a strike of 2,100 group home workers who had planned to walk out June 4.

In addition to the wage hikes, the agreement provides 3-percent raises to those already making more than entry-level pay, as well as a a pool of $30 million over the next two years for enhanced medical and retirement benefits. The entire package will cost a total of $184.1 million, according to a statement from the Connecticut state policy office and department of developmental disability services.

In Massachusetts, personal care attendants who work with adults facing intellectual challenges, as well as with others who need daily assistance, make $16.10 an hour, according to the website of their union, 1199 SEIU East, a different branch of the same overall organization representing the group home workers in Connecticut. Rhode Island routinely loses some of its best developmental disability professionals to Massachusetts, and DiPalma said Connecticut is “not that far.”

The strike threat in Connecticut was “a means to an end,” DiPalma said.

“Never mind how they got there,” he said. The state wouldn’t have put up the $184.1 million in the two-year package unless it valued the workers, DiPalma said.

For the most part, the employees of some three dozen private providers of developmental disability services in Rhode Island are not unionized. Wage talks have involved their employers and state officials and revolve around reimbursement rates to the private agencies, not the wages themselves.

Because of differences among agencies in employee-related overhead costs, like workers’ compensation, the actual wages are not exactly the same as the reimbursement rates negotiated between employers and the state, according to Tina Spears, executive director of the largest provider trade association, the Community Provider Network of Rhode Island (CPNRI)

The most recent CPNRI calculations indicate that the average starting pay for direct care workers is $13.18, but there are other reports that some agencies pay $13.40 or a little higher.

Those organizations paying a little more have transferred revenue from other programs to subsidize services for adults with developmental disabilities, in a pitch to be a as competitive as they can in the midst of a huge worker shortage, DiPalma said. Not all the agencies have multiple sources of income, he said.

Judge McConnell has heard testimony that low pay and high turnover has adversely impacted the workforce that the state relies on to comply with the 2014 civil rights consent decree, which requires adults with developmental disabilities to be integrated in their communities. The state is nearly 1100 workers short of the number it needs to guide community-based services, according to a consultant’s report.

McConnell has ordered the state to set starting wages at $20 by 2024, with any interim raises being competitive with direct care pay in neighboring states.

McConnell has a private conference scheduled today, June 8 with lawyers in the consent decree case.

RI DD Providers Agree to $15.75 Hourly Rate; Hike May Not Address Worker Shortage

By Gina Macris

Private agencies serving adults with developmental disabilities have asked for an additional $31 million in the next Rhode Island state budget to offer workers about $17.50 an hour – a bump of more than $4 on the current starting hourly pay.

The $31 million in state revenue would generate an additional $48 million in federal funds under the Medicaid program, for a total of $79 million. The private service system is currently funded at $260.4 million in federal-state Medicaid money.

A trade association of providers says its members need a significant wage hike to begin filling a huge hole in the workforce needed to implement a 2014 consent decree aimed at correcting violations of the civil rights of adults with developmental disabilities.

The state, meanwhile, has offered an estimated hourly pay of $15.75 for direct care workers.

Providers have agreed to the state’s figure, a bump of $2.57 over the current average starting pay of $13.18, as well as to an hourly rate of $21.99 for supervisory personnel. It was not immediately clear how much of a raise the supervisors are to receive.

But the providers, represented by the Community Provider Network of Rhode Island, say they are concerned that the state’s proposal will have little, if any, effect on their attempts to chip away at the worker shortage.

These latest developments in negotiations involving state officials, providers, families running independent support programs for loved ones, and other stakeholders emerged primarily in a budget briefing for the House Finance Committee June 3 and in a separate June 4 report to the federal court from an independent monitor.

The monitor, A. Anthony Antosh, said the consent decree requires the state not only to make certain reforms but to maintain the capacity to carry them out on a continuing basis. The worker shortage, the equivalent of about 1,081 full time positions, means the state lacks that capacity, Antosh said.

FERLAND

In the June 3 budget briefing, the House Fiscal Advisor, Sharon Reynolds Ferland, told the finance committee about the providers’ $31 million request but offered few details as she described the many moving parts of the state’s overall spending plan for Fiscal 2022, which begins July 1, in less than four weeks.

She said that the $31 million was not a negotiated figure or “anything other than what was asked” by provider agencies

Ferland told the finance committee that the proposed privatization of the state-run group home system is off the table, evaporating an estimated $20 million in savings that the administration had written into the budget.

The privatization depended on the existing network of private agencies – the same ones with the 1,000 worker shortage - to take on some 116 residents of the state-run group home system, without an increase in private-sector pay.

Ferland said that “was not something they (private providers) could support, or handle.”

The state pays its group home workers about $5 more an hour than it allows for frontline caregivers in privately-run homes.

In offering wage increases, the state withdrew all funds that previously had been earmarked for transition and transformation of the service system from a model based on segregated care to one that puts people in their communities.

Antosh

Antosh was not pleased, saying that “it is critical that the State provide transformation and innovation funds in FY 2022,” the fiscal year that begins July 1.

Antosh noted in several places in the report that there has been no discussion of wages or system reform for 2023 or 2024 – the last two years of the consent decree.

He recommended that the state meet with providers and other stakeholders once a week until they reach an agreement on wages for 2022 and 2023 and complete a comprehensive review of the rate structure that governs reimbursement to private providers.

The current rate structure is a dizzying array of dozens of figures and codes, with some rates presented in 15-minute increments of service for each client in the care of a single staff person. For example, providers must enter 20 fifteen-minute service units to get paid for one staffer working with five persons for an hour during the day, according to the current reimbursement methodology.

The state has agreed in principle that the rate structure should be simplified and initially told Antosh it would be done during the next fiscal year, the monitor said. More recently, he said, the state informed him the new rate structure would not be fully fleshed out until 2024.

He recommended that the new rate structure be completed in time for the governor to include it in his budget proposal for the fiscal year that begins July 1, 2023.

Often in the last year, Antosh’s recommendations to Judge McConnell have been transformed into court orders, with the judge becoming increasingly specific on the way he wants the state to address particular issues.

McConnell

For example, to attract high-quality job applicants, McConnell issued an order in January saying the state must increase wages to $20 an hour by 2024. Shortly after that, legislative leaders withdrew their representatives from ongoing talks among officials of the executive branch, the private providers, family members, individuals who receive services, and other advocates.

Spokesmen for the House and Senate said at the time that the General Assembly would deal with compliance issues as part of the legislative process.

Governor McKee’s initial budget proposal included no pay increase for direct care workers or supervisors.

And in a budget hearing June 2 for members of the finance committee’s human services subcommittee, Ferland said some of the court orders, like the one dealing with wages, appear to go “beyond” the consent decree. She did not explain the worker shortage or any other context for McConnell’s order on wages.

The instability of the labor force existed well before the pandemic. According to a detailed analysis commissioned by service providers, before the pandemic the private system had filled the equivalent of 2088 of the 2845 fulltime positions it needed to serve people in the community as the consent decree required, leaving 757 vacancies.

COVID made the situation worse, with the number of vacancies increasing by 324, for a total of 1,081, the consultants, the Approach Group, told Judge McConnell in a report delivered in April.

As a means of ensuring consistent funding on the basis of the latest data available, McConnell has ordered that the developmental disabilities caseload be incorporated into the Caseload Estimating Conference by November of this year.

The twice-yearly caseload estimating and revenue estimating conferences are used in budget preparations both by the executive and legislative branches.

The governor has proposed that the developmental disabilities caseload into the Caseload Estimating Conference beginning in November, 2022.

But in his latest report, Antosh asked the judge to remind the state that the deadline for participation in November, 2021 was “a court order, not a request.” A spokesman for the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals said recently that the timing of the switch to the Caseload Estimating Conference was “under review.”

BHDDH has not explained exactly why the change could not be made in 2021 in accordance with the court order.

Another change from the court’s expectations is that there is no funding in the budget to switch from quarterly to annual budget authorizations for each person who receives services, according to Ferland’s June 2 presentation to the human services subcommittee of the finance committee.

The quarterly authorizations, applied to the existing fee-for-service model, mean that all clients must have 100 percent participation for all the funding to be used – a virtual impossibility. Because funding cannot be transferred from one quarter to another, the state counts on saving about $6.7 million a year from program absences.

The governor’s initial proposal for Fiscal 2022 added that money so that the funding matched the annual authorization for an entire year. Providers, those receiving services, and their families have long complained that the quarterly authorizations do not allow them any flexibility in planning individualized programs.

Read the monitor’s latest report.

Read the consultants’ report on the worker shortage.

Federal Judge Presses RI To Raise DD Worker Wages In Wake Of Severe Shortage Of Services

By Gina Macris

The U.S. District Court has put pressure on the state of Rhode Island to increase the pay of front-line workers who support adults with developmental disabilities in the budget beginning July 1, a year earlier than the disability service agency had planned.

Indeed, two human services officials have recommended that privately-employed front-line workers serving adults with developmental disabilities get $15 an hour – a hike of nearly $2 –in light of a new report that the post-pandemic workforce will fall far short of the number needed for complying with a 2014 civil rights decree.

On April 28, the day after hearing about the worker deficit, Chief Judge John J. McConnell, Jr. issued an order saying the rates must be “reasonably comparable” with those paid in the state’s own group home system and in neighboring Massachusetts and Connecticut.

Massachusetts and Connecticut pay $15.75 and $15.78, respectively.

The state pays its own group home workers an average of $18.46 an hour and sets rates for private providers that allow them to pay front-line employees an average of $13.18 – about five dollars less than the workers make in the state-run group homes, according to figures provided to McConnell.

Moreover, the budget now under consideration by the General Assembly assumes the private sector will absorb more than 100 residents of state-run group homes, without any rate increases.

COVID Exacerbated Worker Shortage

A report submitted to the court April 27 indicated private providers simply don’t have the staff to take on any new clients, let alone meet the demands of the 2014 consent decree by the time it expires in 2024.

The report, compiled by the same consultants the state used for a $1.1 million analysis completed last July, started with the premise that a “stable and skilled workforce is a necessary pre-condition” to implementing changes required by the consent decree.

The consultants concluded that at the end of 2020, the privately-operated system had 1,764 direct care workers, only 62 percent of the 2,845 full time employees it needed to ensure that adults with intellectual and developmental challenges have access to jobs and other activities in their communities, as required by the consent decree. That’s a gap of 1,081 full-time positions.

Currently, the system is staffed at 62 percent of the capacity it would have if all positions were filled, said the consultants. Except for those living in group homes, eligible adults at the end of 2020 generally received less than half the services they got before the pandemic. For those living in family homes, the reduction was calculated at 71 percent, according to the consultants.

The consultants previously worked for the New England States Consortium Systems Organization (NESCSO,) a non-profit regional organization under contract to the Department of Behavioral Healthcare, Developmental Disabilities and Hospital (BHDDH) to analyze the developmental disabilities system top-to-bottom – but provide no recommendations.

The latest report, presented to McConnell April 27, was commissioned by the Community Provider Network of Rhode Island, (CPNRI), a trade association.

CPNRI seeks an hourly rate of $17.50 an hour for front-line workers and proportional increases for supervisory and other personnel. CPNRI’s executive director, Tina Spears, told McConnell during the court hearing that the proposed $15 hourly rate would only address direct care worker pay.

The pay hike would cost nearly $26.9 million and would require legislative approval in the next two months if the change were to take effect in the budget beginning July 1.

Will The Governor Amend Budget Plan?

During the April 27 court hearing, an independent court monitor in the case, A. Anthony Antosh, said he understood a new budget article is to be drafted in early May.

Neither the office of Gov. Dan McKee nor BHDDH have responded to questions about any top-level support of a $26.9 million expenditure to raise worker pay or how they would fund it.

The Director of the Developmental Disabilities, Kevin Savage, was one of the two officials recommending the $15 hourly wage. The other was Kayleigh Fischer, Director of Budget and Finance at the Executive Office of Health and Human Services.

In January, McConnell raised eyebrows at the State House when he ordered the state to raise direct care wages to $20 an hour by 2024.

Both the House and Senate leadership withdrew their representatives from talks organized by the court monitor about consent decree reforms, which must be up and running by July 1, 2023, a year before consent decree is set to expire.

Instead, legislative spokesmen said at the time, the respective chambers would consider reforms in the context of the budget process.

But with only two months left until the start of the next fiscal year, that process has been silent on developmental disability reform.

McConnell Tightens The Reins

The apparent passivity of the legislative process, combined with the fresh data showing that non-compliance with the consent decree has accelerated during the pandemic, apparently prompted McConnell to tighten the reins in his oversight of the case.

He has been adamant that the state cannot meet the integration requirement at the heart of the consent decree without beginning implementation of a three-year plan in the next budget.

The current system, now ten years old, comes with a reimbursement system built on congregate care – a violation of the Integration Mandate of the Americans With Disabilities Act.

While BHDDH officials had said they wanted to tackle structural reforms first, McConnell’s latest order accepts the position of providers that they cannot get their clients into the community unless they first have an adequately paid, stable workforce.

Roughly one in three workers leave within a year, and one in five jobs goes begging, with the majority of supervisory staff frequently filling in for front-line workers, according to various reports.

McConnell’s latest order says the state must continue to meet in person or by teleconference with providers and at least one representative of families who direct their own programs to address the immediate fiscal and administrative issues in several court orders dating back to last July. The judge wants a progress report by the end of May, he said.

The annual state budget typically is finalized in early June for the next fiscal year, but McConnell said state officials should continue talking with providers and at least one family representative to prepare for the following two fiscal cycles leading up to the deadline for full compliance with the consent decree in 2024.

In addition, McConnell’s order said the developmental disability caseload should be part of the twice-yearly process the governor and the General Assembly use to determine public assistance obligations beginning in November of this year. He said he will continue to look at job turnover and vacancy rates, as well as client participation rates, to determine the effect of the wages on the system.

Governor McKee’s budget proposal would have the developmental disability caseload become part of the twice-yearly meeting, the “Caseload Estimating Conference,” in November, 2022.

The caseload and revenue-estimating conferences in May and November are considered critical tools in budget-planning.

RI To Give Olmstead Update to Judge Tomorrow

By Gina Macris

Chief Judge John J. McConnell, Jr. of the U.S. District Court will get an update Tuesday, April 27, at 1 pm. in a virtual public hearing on Rhode Island’s plan to comply with a 2014 consent decree requiring services that enable adults with developmental disabilities live regular lives in their communities.

McConnell has ordered the state to have a three-year budget plan in place by June 30, with progress reports at the end of April, May, and June.

Without such a plan, Rhode Island cannot meet a 2024 deadline to comply with the consent decree, McConnell has said.

For the court’s instructions on accessing the hearing remotely, click here.

The Zoom Meeting ID is 160 086 6769

The Zoom Password is 515082

RI EOHHS Secretary To Temporarily Run BHDDH

Womazetta Jones

By Gina Macris

Rhode Island’s chief health and human services executive, Womazetta Jones, will serve as interim director of the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) and conduct a “thorough review” of the agency, Governor Daniel McKee announced April 9.

BHDDH has been beset by controversy over the discharge of some long-time patients of Eleanor Slater Hospital who, advocates say, have been left without the support they need in the community.

BHDDH officials have denied the reduction in patients is a cost-cutting measure. The state may have to compensate for tens of millions of dollars of federal Medicaid funding for Eleanor Slater Hospital which it had counted on to balance the BHDDH budget until mid-2019.

Jones will continue her work as Executive Secretary of Health and Human Services while serving at BHDDH, according to McKee spokesman Matt Sheaff. That means she is expected to be hands-on at BHDDH while also overseeing three other agencies: the Departments of Health, Human Services, and Children, Youth and Families.

McKee said in a statement he wants Jones to make recommendations to him “on issues including, but not limited to, departmental policy, operations, staffing and quality standards for patient care.”

Jones is stepping in for A. Kathryn Power, whose resignation McKee announced April 5.

Judge: RI Must Expand DD Budget Or Risk Olmstead Consent Decree Noncompliance

By Gina Macris

Judge McConnell

Rhode Island will not be able to meet a 2024 deadline for complying with a 7-year-old civil rights agreement unless it begins allocating money now to attract an adequately-paid, skilled workforce to serve adults with developmental disabilities in their communities.

So says Chief Judge John J. McConnell, Jr. of the U.S. District Court in a nine-page order issued March 16 clarifying what it will take to comply with a 2014 consent decree correcting Rhode Island’s violations of the Integration Mandate of the Americans With Disabilities Act (ADA).

Five days ago, on March 11, Governor Daniel McKee submitted a state budget request to the General Assembly that does not propose any rate increase for direct care workers. These workers are employed by the private agencies the state relies on to carry out provisions of the 2014 Olmstead consent decree.

Under the current rates, providers are able to pay front-line workers an average of $13.08 an hour, or $1.58 above the state’s minimum wage of $11.50, McConnell said in the statement, which amounted to a tutorial on the issues affecting compliance.

The $11.50 rate went into effect last October, and McConnell pointed out there are bills pending in the General Assembly for additional raises.

“The functions and responsibilities of staff who provide direct support to adults who have intellectual and developmental disabilities are significantly more challenging than many minimum wage positions,” McConnell said.

In several states the pay of direct support staff is considerably higher than minimum wage, he said. Utah, for example, has set its direct care rate at 72 percent above minimum wage.

He drew a straight line connecting low wages, high turnover, and an inability of the provider agencies to find a well-trained, stable workforce capable of providing an array of services that will enable adults with developmental disabilities to live meaningful lives in their communities in accordance with the ADA’s Integration Mandate.

One in five jobs in private agencies are currently vacant, and agencies report an average annual turnover of about 30 percent, according to a survey by an independent court monitor conducted in February. In addition, 80 percent of adults and families who direct their own programs said they had difficulty finding staff, and 68 percent said they had difficulty retaining staff, according to the monitor.

McConnell’s latest statement underlined an order he issued Jan. 6 which requires the state to raise workers’ wages to $20 an hour by 2024 as part of a comprehensive overhaul of services from center-based group care to one-on-one or one-to-two staffing in the community.

He said the state must collaborate with service providers and advocates in the community to develop a three-year budget strategy for compliance with the consent decree and give him monthly progress reports at the end of April, May, and June.

The judge cited a 2020 report of the state’s own consultants that concluded the provider agencies are financially “fragile and profoundly undercapitalized.”

McConnell also felt it necessary to say that the “entirety of the State” is a party to the consent decree, not merely the state agencies identified in the document.

The McKee administration and the leadership of the House and Senate had no immediate comment on McConnell’s order.

The judge reminded the state that the findings of the U.S. Department of Justice in 2014 cited “multiple concerns” about the state’s failure to comply with the Integration mandate.

Among them were:

• A lack of resources

• Failure of the state’s rate-setting methodology and reimbursement model to promote integrated supported employment and day services

• The inflexibility of the state’s reimbursement model.

McKee’s budget for the fiscal year beginning July 1 includes a proposed $15 million “transformation and transition fund,” but it’s not clear exactly what that money will pay for.

There are five committees already working under the supervision of the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals on proposed administrative reforms.

But McConnell has signaled he wants the planning complete by the end of June and the implementation to begin at the start of the new fiscal year in July.

He also noted that the integration mandated by the consent decree are also required by the Centers for Medicaid and Medicare Services if the state is to continue qualifying for federal Medicaid reimbursement under the Home And Community-Based Services (HCBS) Final Rule. Like the consent decree in Rhode Island, that rule gets its authority from the Olmstead decision of the U.S. Supreme Court, which in 1999 clarified the Integration Mandate of the ADA.

“Rhode Island is seven years into the Consent Decree,” McConnell said. (The eighth year begins April 9.)

“With three years remaining, there is significant work still to be completed,” he said in conclusion.

Click here to read Judge McConnell’s order of March 16.

Proposed $10M Cut In RI DD Spending Overshadows Reform Plans

By Gina Macris

Thursday’s initial briefing on Governor Daniel McKee’s proposed budget for adults with developmental disabilities highlighted a $15-million set-aside to plan changes in the system, in response to a federal court order enforcing a 2014 civil rights consent decree.

At the same time, the budget legislation submitted to the General Assembly later in the day, on March 11, shows that overall spending on developmental disabilities would be $10 million less than spent this year.

McKee proposes adding $476,573 to the current developmental disabilities allocation for a total of nearly $304.5 million in federal and state Medicaid money and miscellaneous other sources of funding to close out the current fiscal year June 30.

The budget bill for the next fiscal year cuts overall spending on developmental disabilities to $294.4 million. That total includes $5 million in federal funds and $10 million in state revenue earmarked in the budget for the $15-million “transformation and transition fund” to plan reforms to comply with the consent decree.

The spending cut reflects projected savings from phasing out the costly state-run group home system. Residents would be moved to less costly group homes run by private service providers, according to the budget plan.

But the private agencies, who were in a precarious financial position even before the onset of the COVID pandemic a year ago, have been reluctant to take on additional clients in recent years because the amount the state pays does not cover the actual cost of services, according to repeated testimony before House and Senate finance committees, as well as testimony in federal court.

The state’s own consultants, the non-profit New England States Consortium Systems Organization, highlighted the providers’ fiscal problems and the way the demands on them strained capacity as part of an exhaustive 18-month study completed last summer for the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH).

The core long-term problem, exacerbated by COVID-19, is an inability to find workers for jobs that carry a high degree of responsibility but provide an average starting wage of about $13.18 an hour, less than some fast food and retail chains and less than Amazon, according to testimony before Chief Judge John J. McConnell of the U.S. District Court.

McConnell, who enforces compliance with a 2014 civil rights decree requiring the integration of adults with developmental disabilities in their communities, has ordered the state to raise workers’ wages to $20 an hour by 2024 as part of a comprehensive three-year overhaul of the developmental disabilities system.

The state budget indirectly controls how much the private providers can pay their workers by setting reimbursement rates for various services, but no money in McKee’s proposal is carved out for a rate increase.

Nor does it appear the McKee administration anticipates the heightened level of spending in the next several years that would support the kind of investment needed to comply with requirements of the consent decree to accommodate clients’ desire to be part of their communities, at work and at play. The consent decree gets its authority from the Integration Mandate of the Americans With Disabilities Act.

McKee’s budget summary anticipates costs for developmental disabilities services will increase 4 percent annually through 2026.

A 4 percent annual increase would come nowhere close to fulfilling the court-ordered hourly wage of $20 an hour which, according to one estimate, would require an budget hike exceeding 45 percent.

The budget summary indicates the state aims to save a net $11.4 million by transferring the operations of the state-run group home system to the privately-run system by October 1.

The state-run system, called Rhode Island Community Living and Supports, (RICLAS) is currently allocated $29.7 million to care for 116 group home residents. The budget summary says transferring RICLAS operations to the private group home system would save $19.2 million in federal-state Medicaid funds in the RICLAS account in the fiscal year beginning July 1.

At the same time, a total of $7.8 million would be added to the private provider system to care for the former RICLAS residents. The budget for the next fiscal year would still leave about $9 million in RICLAS through June 20, 2022. A BHDDH spokesman could not immediately say how long the RICLAS phase-out would take.

The $19.2 million cut in RICLAS would eliminate the equivalent of 50 full-time jobs, mostly from attrition or transfer, the BHDDH spokesman said. RICLAS caregivers are paid a minimum of $18 and receive state employee benefits.

The last time BHDDH announced plans to move large numbers of people in residential care, in 2016, it achieved only a small fraction of the savings the Office of Management and Budget had calculated.

Of 100 persons projected to move from group homes to less costly shared living arrangements in private homes during the first six months of 2016, only 21 made successful matches with families.

Instead of projected savings of $19.3 million, the state recouped a few hundred thousand dollars in that six-month period.

Between March, 2016 and July, 2020, the number of people in shared living arrangements increased from 288 to 399. Since then, the number has decreased to 378, according to BHDDH figures.

The $15-million transformation and transition fund would support a policy and planning effort to carry out reforms required for compliance with the consent decree, according to the budget bill.

BHDDH informed Judge McConnell in February that the changes would take 18 to 24 months to implement, with a target date of December, 2022.

According to the budget language, the fund will be dedicated to:

• Help providers “strengthen” their operations to “support consumers’ needs for living meaningful lives of their choosing in the community”

• Allow providers the chance to participate in a performance-based payment model

• Reduce administrative burdens for providers

• Invest in “state infrastructure” to implement and manage these initiatives

• Prepare for a new way of approaching budgeting of the developmental disabilities caseload in the future.

Beyond the language in the budget bill, there were no details immediately available from BHDDH on what the transformation and transition fund will pay for.

$15 M for RI DD Reform Planned In Next Budget

By Gina Macris

Rhode Island Governor Daniel McKee unveiled a budget plan March 11 that includes $15 million for structural reforms to services for adults with developmental disabilities in the next fiscal year.

Overall, McKee’s has proposed an $11.17 billion budget for Fiscal 2022 which promises to resolve a statewide $336 million deficit while protecting those hardest-hit by the pandemic and helping small business. McKee said the budget “protects Rhode Islanders through an unprecedented public health crisis and lays the foundation for a durable recovery.”

At a noontime virtual briefing for reporters, A. Kathryn Power, director of the state Department of Behavioral Healthcare, Developmental Disabilities, and Hospitals, said $10 million of the developmental disabilities reform effort will come from state revenue and another $5 million will be funded by the federal government.

She said BHDDH wants to create a “stronger provider community that is fiscally sustainable.” The reform efforts will increase opportunities for employment and other services for adults with developmental disabilities, she said.

Chief Judge John J. MCConnell, Jr. of the U.S. District Court has ordered the state to develop a three-year plan for overhauling privately-run services comply with a 21014 consent decree which requires Rhode Island to integrate adults with developmental disabilities in their communities in accordance with the Americans With Disabilities Act.

The developmental disabilities budget contains a separate $4.5 million allocation for “alternative placements” for adults with developmental disabilities who live in a state-run group home system called Rhode Island Community Living and Supports.

A ten-percent increase for shared living caregivers also will be in the budget, as part of another group of expenditures intended to encourage more home and community-based services as an alternative to residential care.

Additional information was not immediately available on budget details affecting those with developmental disabilities.

RI General Assembly Will Handle Court-Related DD Issues DD Issues In Regular Budget Talks

By Gina Macris

The pace of discussions for complying with a court-ordered overhaul of Rhode Island’s developmental disability system is expected to pick up as early as next week, when newly elevated Governor Daniel McKee rolls out his budget proposal for the fiscal year beginning July 1.

McKee was sworn in March 2, replacing Gina Raimondo, who resigned as governor after clearing final hurdles in Washington, DC to become Secretary of Commerce. Raimondo’s office said in mid-January that McKee, then Lt. Governor, would be responsible for submitting the budget proposal to the General Assembly.

It remains unclear to what degree, if at all, the proposed state budget will incorporate additional money for initial steps toward compliance with a federal court order enforcing a 2014 civil rights agreement.

While uncertainty about funding hovers, court-ordered discussions organized by the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) have been underway since last August to develop a path forward for providing services that will encourage integration of adults with developmental disabilities in their communities, in accordance with the 2014 consent decree and the Americans With Disabilities Act.

A recent report to Chief Judge John J. McConnell, Jr. of the U. S. District Court indicates short-term recommendations are taking shape to address some of the 16 points the judge laid out in a reform agenda last summer.

He gave the state until June 30 to develop a three-year implementation plan that will achieve full compliance with the consent decree by 2024.

Representatives of the House and Senate leadership participated in some court-ordered reform talks until McConnell issued an order Jan. 6 which said the three-year plan must include these specifics:

• a $20 minimum wage for direct care workers by fiscal 2024.

• Incorporation of the developmental disabilities caseload in the formal process for estimating the state’s public assistance obligations for budget calculations, beginning this year.

On March 3, House Speaker Joseph Shekarchi and Senate President Dominick Ruggerio issued a new statement on how they will handle legislative issues raised by the reform efforts:

“Specific issues will be analyzed and discussed in legislative committees as part of the public hearing process on pending legislation as well as the upcoming state budget.”

The two leaders continued: “The members of the General Assembly care deeply about individuals with developmental disabilities and ensuring a strong continuum of care, and the Senate President and House Speaker believe that we have an obligation as a society to provide strong services and supports for all vulnerable Rhode Islanders.”

The leadership had withdrawn from reform talks out of concern that their representatives’ participation could be perceived as tacit approval of change outside the legislative process, according to separate letters sent to McConnell Feb. 3.

Shekarchi’s and Ruggerio’s statement did not specifically mention the direct care worker wages or making the developmental disabilities numbers part of the twice-yearly Caseload Estimating Conference, the budgeting tool used by the governor and the legislature.

Development of a new approach for determining how to support the individualized plans of the developmentally disabled population is at the heart of the overhaul. The existing fee-for-service system was designed 10 years ago for congregate care, where one or two staff members could oversee as many as ten clients in a day care center or sheltered workshop. The U.S. Department of Justice found that model violated the ADA’s Integration Mandate.

In November, McConnell heard testimony that the current funding ceiling for the private provider system, roughly $268.7 million in federal/state Medicaid money, will not support integrated services, which are much more labor-intensive — and thus, more costly — than congregate care. The cost of correcting the non-compliance could increase the developmental disabilities budget by nearly 50 percent, according to one estimate.

Because of the uncertainty over funding, five workgroups organized by BHDDH are focusing on short-term changes that can ease administrative burdens on providers and make the state bureaucracy more user-friendly for the individuals served and their families, according to a progress report submitted to McConnell at the end of February.

According to the report, BHDDH expects to have detailed information by March 31 on:

• shifting from quarterly to annual per-person budget authorizations

• streamlining dozens of private provider billing codes, many of which require documentation of staff time in 15-minute increments for each client served

• simplifying the process of writing each client’s annual service plan “to reduce repeated questions, frustrations, and errors requiring correction and intervention.”

The report recommends adding a second assessment or new questions or criteria to improve the accuracy of the standardized Supports Intensity Scale-A, (SIS-A) interview, used to determine service needs and funding levels.

Improved assessments would reduce reliance on appeals. Interviewers also need training on cultural differences, it said.

Additional recommendations include:

• a training program for parents on how to approach the SIS-A, which has been the subject of frequent complaints over the years from parents

• clarification of the process for appealing funding determinations made as a result of the SIS-A, and developing ways to more quickly resolve appeals

• consolidation of separate applications for Medicaid and for Medicaid-funded services into one process

• a request for a waiver from the Centers for Medicare and Medicaid Services for Medicaid eligibility redeterminations for persons with developmental disabilities, who have life-long conditions.

The report said long-term revision of the fiscal and reimbursement system will be implemented by December, 2022.

The workgroups developing the recommendations include both state officials and representatives of the community, including individuals who themselves receive services, families, advocates, and service providers.

The groups’ recommendations are reviewed by the appropriate department-level directors and other key officials, according to the report.

Once final recommendations are analyzed and decisions made by the state, a “cohesive workplan” that will be submitted to McConnell on or before June 30 as required by an order the judge issued last July 30, the report said.

RI House And Senate Withdraw From Budget-Related Consent Decree Talks

By Gina Macris

Both the Rhode Island House and Senate have withdrawn from negotiations on a three-year budget plan to overhaul the state’s developmental disabilities system and comply with the Americans With Disabilities Act (ADA).

The development of such a plan had been recommended by an independent federal court monitor as part of a fiscal analysis he submitted in November to Chief Judge John J. McConnell, Jr of the U.S. District Court. McConnell oversees the state’s efforts to get into compliance with a 2014 consent decree in which the state agreed to correct violations of the ADA by 2024.

Members of the House and Senate joined the talks in December, but the leadership of both chambers of the General Assembly decided to withdraw after McConnell made the development of the three-year budget plan the topic of a court order Jan. 6.

Dominic Ruggerio

“We are concerned that continued involvement of the Senate could be perceived as tacit approval of the entire body without the proper processes that allows for meaningful member input,” Senate President Dominic Ruggerio and Majority Leader Michael McCaffrey said in a Feb. 3 letter to McConnell.

The House used similar language in a separate letter.

Ruggerio and McCaffrey wrote, “We appreciate the work of the Court and the process by which you are moving to identify and operationalize solutions to accomplish the goals of the consent decree.”

“We anticipate that the Court will order the state to undertake a course of action, and at that time, in our role as the appropriating body, we will further engage in this process,” the Senate leadership told Judge McConnell.

Last July, McConnell ordered an overhaul of the entire developmental disabilities service system to end segregated care and encourage the integration of individuals with intellectual challenges in their communities.

In response to that July order, representatives of the state’s developmental disability agency began working with families, providers, and advocates on a 16-point agenda for reforming the way services are delivered and the rules for reimbursing the private agencies which provide direct care.

McConnell’s order on Jan. 6 focused on the budgetary implications, memorializing the main points of the monitor’s analysis, including a requirement that the state raise the wages of direct care workers to $20 an hour by Fiscal 2024.

In the same order, McConnell also said the actual costs of developmental disabilities services must be included in a state budgeting procedure known as the Caseload Estimating Conference, which allows the state to get a better handle on its financial obligations for entitlement programs.

Joseph Shekarchi

In a statement responding to a request for specifics prompting the withdrawal, Shekarchi, newly elected Speaker of the House, said, “It would be best to answer these questions with an overall clarification that the action by the House is not a repudiation of any of the specific ideas being discussed.“

When the House was invited to join talks in December, the leadership expected that its representatives would participate in discussions about issues of concern for service providers and options for what might be included in the Governor’s upcoming budget. House leadership “was happy to have someone included,” Shekarchi said.

Because the Jan. 6 order contained “much more prescriptive policy remedies than expected, the House felt that further participation might be perceived as delegation of its legislative authority,” the statement said.

It was out of an abundance of caution that the House withdrew, he said.

The Senate leadership’s letter said it was “unclear if the Senate’s inclusion was designed to guide discussions and outcomes or merely for observation.”

Ruggerio and McCaffrey said “the Senate values continued dialogue and looks forward to reviewing any proffered solutions in an open, public committee process.”

Similarly, the letter from the House leadership said they encourage continued dialogue and “are eager to have one or more of our committees review potential solutions in an open and public process.”

Individual Senators may continue to participate in the current talks, but are acting on their own behalf and do not represent the Senate as a body, Ruggerio and McCaffrey said.

Sen. Louis DiPalma, D-Middletown, has attended the negotiations and is widely known as an advocate for the integration of adults with developmental disabilities.

McConnell, meanwhile, has scheduled a private conference Feb. 11 with the monitor, Antosh, and lawyers representing the U.S. Department of Justice, the state, and several service providers.

Federal Judge Orders RI DD System Overhaul, $7 Worker Pay Hikes By 2024

By Gina Macris

Chief Judge John J. McConnell, Jr. of the U.S. District Court has tightened his reins on Rhode Island’s developmental disability system in an order that gives the state two and a half years to raise the hourly wages of direct care workers nearly $7, to $20 an hour, as part of a sweeping overhaul to comply with the Integration Mandate of the Americans With Disabilities Act.

Through its budget, the state controls the parameters of wages for front-line caregivers, who make an average of $13.18 an hour working for some three dozen private agencies under license from the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH).

McConnell’s order, issued Jan. 6, distills recent recommendations of an independent court monitor, who said that Rhode Island cannot fully comply with a 2014 civil rights decree unless it overhauls its entire developmental disabilities system and increases funding. The civil rights consent decree says federal oversight is to expire June 30, 2024, but only if corrections of civil rights violations have been in place for at least a year.

Low front-line worker pay is widely regarded as the biggest weakness of the state’s developmental disability system. Provider agencies, as well as those independently coordinating their own services or the services of loved ones, have found it increasingly difficult to recruit and retain staff, who often can make more in fast food restaurants and retail stores, or at an Amazon distribution center. The staffing situation has only been exacerbated by the COVId-19 pandemic in the last year.

With the 2024 deadline in mind, McConnell’s order gives the state about six months to develop a three-year budget plan that will subsequently reach the $20 hourly worker rate. That pay increase would be effective in the 2024 fiscal year, which begins July 1, 2023.

The budget plan also must provide:

• Proportional wage increases for other categories of support staff, like job developers and supervisors

• Increased funding to address the costs of moving from a segregated system of care to one that integrates adults with developmental disabilities in their communities for work and leisure time.

• A per-capita amount for technology. Mobile phones and other hardware would provide internet connectivity still inaccessible to many adults with developmental disabilities as well as provide other kinds of assistance, depending on individual needs.

• Increased funding for transportation, found to be a barrier for many in getting to work or attending community events.

• Increased funding for the individualized planning that is supposed to drive purposeful services designed to help people lead meaningful lives.

Other than the direct care wages, McConnell’s order specified no dollar amounts for the three-year fiscal plan, which he said must be completed before the next fiscal year’s budget is finalized. (Plans aside, the General Assembly can only authorize funding one year at a time.)

The judge said the amounts must be negotiated between state officials and representatives of the community, including “individuals with intellectual and developmental disabilities, families, organizations that provide services and supports, and other stakeholders.”

And beginning this year, McConnell said, the legislative and executive branches must take into account the developmental disabilities caseload in calculating its public assistance obligations in the semi-annual Caseload Estimating Conference, which occurs in May and November in conjunction with the Revenue Estimating Conference. The costs of the developmental disabilities services historically have been omitted from caseload estimating conferences, which are used by the executive and legislative branches in annual budget planning.

In addition, the judge’s order said the state has until June to complete the revision of “all aspects of the developmental disabilities and funding system,” a reference to basic assumptions and regulations that for the last decade have been designed to promote group or congregate care. That effort has been underway since last July. Its parameters are already subject to a separate court order.

Since 2016, state officials have strived to provide pilot programs to support regular employment and increase community activities for adults with developmental disabilities, but it has become increasingly clear that the existing level of funding and the associated reimbursement rules for private service providers will not support system-wide change.

A full discussion of the issues reflected in the judge’s order are contained in a recent fiscal analysis submitted to the court by the court monitor.

RI Faces High Cost For Fixing DD ADA Violations

By Gina Macris

After funding services for adults with developmental disabilities below their actual costs for nearly a decade, the state of Rhode Island is about to experience sticker shock.

The system of private agencies that provides most services for adults with developmental disabilities is on the verge of collapse, by all accounts, and a federal judge has given the state until Dec. 18 – five days from now – to come up with the money to keep it afloat until the next fiscal year.

The state also is under court order to devise and execute a plan for strengthening the system during the next three years so it can comply with a federal civil rights agreement that requires Rhode Island to integrate adults with developmental disabilities into community life by 2024. With the judge ready to use his power to enforce the consent decree, those costs could increase spending on developmental disability services by a third or more in the next several years.

Last month, a federal court monitor addressed the short-term fiscal gap by suggesting that the state release $2 million a month in unspent funds already allocated to developmental disabilities simply to keep the agencies’ doors open over the next six months. The COVID-19 pandemic has forced agencies to shrink services and drastically reduce billing.

Judge John J. McConnell, Jr.

In a recent hearing before Chief Judge John J. McConnell, Jr. of the U.S. District Court, a spokeswoman for service providers took a different approach, saying the state needs to immediately raise direct care pay, now an average of $13.08 an hour, to enable the private agencies to recruit and retain employees during the pandemic.

Roughly two thirds of these essential workers are women and more than half are people of color, according to the trade association spokeswoman.

A recently-completed report from the association, the Community Provider Network of Rhode Island (CPNRI), fleshes out projected costs:

• An hourly increase of $2.32, to $15.50, would require nearly $44.1 million a year, or 16.4 percent more than the state has currently budgeted.

• A hike to $17.50 would mean an additional $79.8 million, or a 29.7 percent increase in the annual budget

• A $20 hourly rate would add $124.5 million to the budget. That would amount to a 46.4 percent increase in spending.

The report, “A System in Crisis,” said employers need to be able to offer $17.50 immediately to get job applicants in the door during the pandemic. In Fiscal 2022, which begins July 1, the rate should be increased again to $20 an hour.

Monitor’s Calculations More Limited In Scope

The monitor, meanwhile, agrees with the need for pay hikes, although he would allow the state more leeway on the timeline. In his latest report, filed with Judge McConnell Nov. 30, the monitor, A. Anthony Antosh, said the state should raise hourly wages to $17.50 “as quickly as possible” and to $20 by Fiscal 2024, which begins July 1, 2023.

A. Anthony Antosh

Antosh’s fiscal analysis focuses primarily on the changes needed in the final three years of the consent decree. He said there is consensus among various stakeholders with whom he has consulted that staffing and fiscal issues are the two main concerns in implementing the 2014 civil rights agreement.

“The state budget deficit resulting from the COVID-19 pandemic significantly complicates any fiscal analysis and any decision-making about budget planning,” he said.

Antosh makes no specific dollar recommendations but says that figures should be negotiated with provider agencies in a three-year budget plan to be completed in time to begin in the next fiscal cycle on July 1, 2021. He emphasized that the agencies provide 83 percent of the services necessary to support those protected by the consent decree.

Antosh said an ongoing review of the entire fiscal and reimbursement system, itemized in a 16-point court order issued by McConnell July 30, should be complete by June 30, 2021.

He also recommended that steps be taken now to make sure that the specific costs of a strengthened developmental disability system are acknowledged when future state budgets are being developed.

For example, the data on caseloads provided monthly by the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) to the General Assembly should be included in the Caseload Estimating Conference used to determine human service needs in the overall state budget. That is also one of the final recommendations of the “Project Sustainability Commission,” a a special legislative commission headed by Staite Sen. Louis DiPalma, D-Middletown.

While not acknowledging the actual costs, which pay for entitlement services under provisions of the Americans With Disabilities Act, the General Assembly has often criticized the state’s developmental disabilities system for running over budget.

The governor typically relies on the November caseload and revenue estimating conferences to draw up the budget that is submitted to the General Assembly in January. The legislature, in turn, relies on more finely tuned caseload and revenue estimates in May to finalize a spending plan for the next fiscal year.

Monitor’s Numbers “Illustrate” Solutions

Antosh’s report includes five sets of fiscal projections that can best be described as starting points for discussion rather than cost estimates for system-wide change. For reasons related to the language of the consent decree, the monitor’s numbers cover individuals who were identified in confidential documents between 2013 and 2016 and today make up about 67 percent of the entire population with developmental disabilities.

Antosh said the tables of projections and descriptions of the associated costs “illustrate” various options in reconfiguring daytime services for the 67 percent.

The most comprehensive “illustration “ of the cost of re-inventing daytime employment and leisure activities for the specific portion of the population protected by the consent decree would add $35.6 million to the budget in Fiscal Year 2022, which begins next July 1, Antosh said. An additional $14.9 million would be needed in Fiscal 2023 and $15.8 million extra would be added in Fiscal Year 2024.

In addition to protecting a particular class of people, the consent decree is supposed to lead to a system-wide transformation. And state officials have made clear that they intend to include all people eligible for developmental disability services in a reformed system, not just those identified at the time of the consent decree.

The three increases projected by Antosh add up to about $66.3 million a year in three years’ time. Antosh said the increases need not all come from Medicaid funding but draw on a variety of other public and private sources.

The current annual approved budget for the private service providers is about $268.7 million in federal-state Medicaid funds, although the providers’ ability to bill for reimbursement has shrunk since the start of the pandemic.

Actual spending on privately-run services was about $240.8 million in the fiscal year that ended June 30, 2019, according to state budget figures. Antosh said the increases need not all come from Medicaid funding but draw on a variety of other public and private sources.

CPNRI, meanwhile, offered estimates for system-wide reform that would not only increase wages but provide for more labor-intensive supports in the community in keeping with the requirements of the consent decree. The organization’s report said that at a direct care rate of $17.50 an hour, the more labor-intensive option would cost between $112.9 and $158.9 million, depending on the number of hours provided and other variables, including the level of independence of each individual as perceived by the state’s assessment tool.

CPNRI’s report incorporated work completed earlier this year by BHDDH consultants, as well as earlier projections done for the state by different consultants.

COVID-19 Exacerbates Inequities

The pandemic has highlighted the inadequacy of the poverty-level pay of direct care workers in the private sector. The average wage of $13.18 an hour falls below many entry-level jobs in retail, delivery, warehouse, restaurant and janitorial fields, according to the recent report from CPNRI.

That rate is also nearly $5 less than the $18 minimum hourly rate the state pays its own employees to do the same work, running a small parallel system of group homes for about 125 adults with developmental disabilities.

The years-long difficulties faced by providers in recruiting staff have reached critical proportions during the COVID-19 pandemic, leaving many individuals without services and crippling the agencies’ ability to generate income.

The crisis has been nine years in the making.

In 2011, the General Assembly devalued the private provider system when it adopted a new reimbursement model and budget cuts that were justified with an executive branch memo that simply said providers could deliver the same services with less money.

The $26- million budget cut resulted in layoffs and slashed wages. Entry-level positions for caregivers, once the starting point of a career ladder for caregivers who did not necessarily have college degrees, became minimum-wage, dead-end jobs.

At the time, the Department of Behavioral Healthcare, Developmental Disabilities (BHDDH) ignored the recommendation of an outside consultant who said direct care workers should receive a minimum of $15 an hour within a year’s time.

The state pleaded poverty in the aftermath of the financial crash of 2008 and 2009, but by 2011, most other states were either holding steady on previous cuts or beginning to reverse reductions in human service spending, including those for people with developmental disabilities.

The austerity move accompanied a new reimbursement system billed as “Project Sustainability,” intended to equitably distribute available funds to eligible adults with developmental disabilities. The reimbursement model incentivized congregate care in sheltered workshops and day care centers – the least costly form of supervision. Subsequently, the DOJ found that an over-reliance on congregate care violated the Integration Mandate of the Americans With Disabilities Act. That finding led to the consent decree.

In a recent report, CPNRI said that COVID -19 has thrust a system developed and funded for congregate care into one that must deliver personalized services to mitigate infection among a vulnerable population.

Long-term effects of neglect on the system prevent providers from being “agile and responsive to meet the demand and needs of the community,” said the report. For example, the reimbursement model assumes that 40 percent of services will be delivered in center-based care, which is prohibited by public health concerns.

Read the court monitor’s report here.

Read the CPNRI report, “System in Crisis” here.

Pandemic Pushes Worry Over RI DD System Survival “Front And Center” - Judge McConnell

By Gina Macris

Judge McConnell

The federal judge overseeing the reform of Rhode Island’s developmental disability system says the COVID-19 pandemic has sharpened his concern about the financial ability of the state and its service providers to meet long-term goals of the consent decree, which mandates integration of the target population at work and at play.

Other participants in a May 18 hearing in U.S. District Court in Providence echoed the judge’s concerns, but they also said the pandemic has created a great opportunity to cement changes that might not otherwise have come as quickly.

“The fiscal health and stability of providers has always been in the back of my mind,” said Chief Judge John J. McConnell Jr., noting that his worry has come “front and center with this crisis.” Stability is “essential for the consent decree to play out and be seen as accomplished,” he said.

The state and federal governments in 2014 agreed to a civil rights consent decree mandating employment-related services to provide access to jobs in the community for people with developmental disabilities as well as supports to allow them to enjoy integrated non-work activities. The decree runs until 2024.

Kevin Savage

During the hearing, Kevin Savage, the state’s new Director of the Division of Developmental Disabilities, disclosed immediate financial concerns. He said that the state has not received approval from the Centers for Medicare and Medicaid Services for the second of three advance payments promised to keep private providers fiscally afloat during the height of the pandemic.

On March 26, the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) announced that a total of $15.4 million in federal-state Medicaid funding had been set aside for these so-called “retainer payments” during April, May, and June.

While the April payment has received CMS approval, the one for May has not, Savage said. A BHDDH spokesman later said that $5.1 million in advance payments to providers were made May 15.

Savage said it was “important that the state make that payment” to the providers.

The BHDDH spokesman later elaborated:

“When the retainer payments were first described and provided in Rhode Island, CMS had not issued technical guidance on these types of payments.” Since then, he said, CMS has limited retainer payments to a 30-day period, but that “the state is actively working with CMS to expand this time frame.”

CMS reimburses a little more than half of any Medicaid cost applied to the Division of Developmental Disabilities, but if the federal government ultimately does not approve the May 15 payment to providers, the state will be responsible for the entire $5.1 million.

As to the June advance payment, Savage said during the court hearing that the money will be re-cast as an increase in Medicaid rates that adds up to the same amount originally promised to providers.

He also disclosed that one provider decided to change the type of services it offers and the executive director resigned over the issue. Going forward, Savage said, he understands that particular agency would be “less focused” on the kind of individualized work his division wants to do, but he reserved further comment until he has had a chance to speak in depth with agency officials.

The hearing was streamed via the internet application Zoom, as have been previous U.S. District Court proceedings since the federal court building on Kennedy Plaza was closed in early March at the start of the pandemic. For the first time on May 18, however, the hearing was arranged so that the public could see the participants as well as hear them.

Victoria Thomas, a lawyer for the U.S. Department of Justice, said the DOJ is “very focused” on how those protected by the consent decree will get community-integrated services going forward.

The capacity of providers to deliver those services involves more than funding, she said. The state needs to make administrative changes to ensure a stable system of integrated services and supports.

A. Anthony Antosh, the independent court monitor in the case, pressed for two immediate administrative changes:

● Annual funding authorizations for service recipients to replace the quarterly allocations now in place.

● The end of prescribed staffing ratios according to five funding “tiers,” which are based on perceived levels of disability and do not necessarily reflect the amount of support needed for a task at hand.

Savage said the staffing ratios are written into Medicaid rules, and BHDDH could work administratively with CMS to eliminate them. The ratios were designed for center-based day care and providers have argued that the ratios do not work in an individualized community setting. Families and other advocates also oppose them.

Savage said the quarterly funding authorizations were enacted by the General Assembly and cannot be changed without its approval. The fiscal arm of BHDDH favors quarterly payments, he said.

Melody Lawrence, Director of Policy and Delivery System Reform at the state Executive Office of Health and Human Services, said the argument for quarterly authorizations is to “ensure that the resources go to those who need them most.”

McConnell questioned how often people’s service needs change.

“You are doing more frequent checks to make sure people actually need those services,” Lawrence replied.

Two experts have testified before a special legislative commission that Rhode Island is the only state with quarterly funding of adult developmental disability services, a feature which providers have said repeatedly makes it difficult for them to plan ahead or prepare for the kinds of long-term changes the consent decree demands.

The commission, led by State Sen. Louis DiPalma, D-Middletown, recommended more than a year ago that the state switch to annual funding of individualized service plans. It is generally accepted among developmental disability professionals that barring unexpected events, like the death of a family member, the needs of individuals with intellectual and developmental challenges remain fairly stable and predictable throughout their lives.

Savage said that fiscal officials at BHDDH are committed to creating a funding model that is “easier and more straightforward” for providers and families to navigate.

Thomas, the DOJ lawyer, told Savage: “We’ve been hearing that quarterly authorizations create an administrative burden on providers. We like hearing that you want to reduce administrative burdens.”

McConnell asked Antosh to report to the Court by the end of June what the state has done to ease administrative burdens on providers.

Antosh indicated his report will also include a rundown on the changes the state must undertake to satisfy the consent decree by 2024.

Based on his comments in the hearing, he is likely to include recommendations for increased reimbursement rates to providers and provisions for universal access to internet technology for those receiving developmental disability services.

During the hearing, Antosh asked Savage in the short term to eliminate the scale of rates it pays for various daytime direct support work and instead pay the highest one – assigned to community-based activities - for all front-line staff work.

Savage reminded Antosh of the state’s budget deficit, which has been estimated at $234 million in the fiscal year ending June 30 and a whopping $800 million if the next budget cycle is included in the total. He said his division would start on a case-by-case basis by focusing on funding the needs of each individual authorized to receive supports.

Antosh said a lack of access to internet technology has emerged as a big failing during the pandemic. Group home residents need access to wireless networks, as well as to tablets and other hardware that could help them feel less isolated and in the long run could assist providers with remote wellness checks and the like.

A relative handful of people receiving BHDDH-funded supported employment services have been able to work from home, Antosh said, but more would like to try, according to survey results passed on to him.

Technology must be part of the long-term future for the developmental disabilities service system, he said.

The pandemic has curtailed most daytime services and providers’ ability to bill for them in the current fee-for-service reimbursement system. Most of the daytime activities that have occurred have involved outdoor exercise, Antosh said.

At the same time, providers have had to bear the burden of costly cleaning protocols and other unexpected expenses in group homes that are not automatically reimbursed by the state.

As of Tuesday, May 19, the coronavirus affected 47 congregate care sites, according to the BHDDH spokesman. A total of 115 people in congregate care have tested positive, including 5 who were reported hospitalized on Tuesday. An additional 98 people have been exposed to the virus because of where they live but were asymptomatic. And 7 more persons have died from COVID-19, the spokesman said.

Antosh, meanwhile, said the coronavirus crisis has highlighted the fragility of families as well as providers as they have scrambled to support loved ones with developmental disabilities.

Families often have had no support in caring for adult children or siblings who may need attention of one kind or another all their waking hours – and during the night as well.

Antosh said those who direct their own program of services have had difficulty finding staff to relieve them during the crisis. About 700 persons or families direct their own programs, and BHDDH relaxed its rules on hiring staff to allow any capable adult – including parents and legal guardians who might otherwise be out of work.

Savage said a long-standing prohibition against paying legal guardians to support adults who receive BHDDH funding will not be re-instated after the state of emergency is over.

Antosh said 80 percent of family members answering a questionnaire distributed by a coalition of community organizations reported a high level of anxiety.

Seventy percent said they were concerned about what might happen if their loved one needed to be hospitalized or if they themselves became ill and could not continue as caregivers.

(The state Department of Health recently advised hospitals to make exceptions to their no-visitation policy during the pandemic for those who needed assistance in communications and the support of a familiar caregiver to understand medical procedures.)

Outside BHDDH and the Rhode Island Department of Education, which is responsible for transition services for high school students with developmental disabilities, state officials have been “slow to realize how vulnerable this population is,” Antosh said.

But once they understood, officials in other state agencies have become very sensitive to the needs of those with intellectual and developmental disabilities.

He cited the hazard pay awarded to group home workers, a large order of personal protective equipment (PPE) delivered to providers two weeks ago, and another large order for family caregivers that arrived last week, and an increased focus on testing individuals and staff over the last several weeks.

Antosh said “all parties” have joined in discussions about “what re-opening looks like.”

File photos by Anne Peters