DOJ, RI Ask Judge To Settle Major Dispute Over Compliance With ADA Integration Mandate

By Gina Macris

A dispute has arisen between Rhode Island and the federal government over a key phrase in two court-approved agreements which require the state to provide people with developmental disabilities full access to jobs and community activities.

Both sides have asked U.S. District Court Chief Judge John J. McConnell, Jr. to rule soon on what it means for the state to achieve “substantial compliance” with two companion civil rights decrees signed in 2013 and 2014.

The details of the dispute focus on the first of the two agreements, which is scheduled to expire in six months – July 1,2020 – and is known as the Interim Settlement Agreement (ISA).

This agreement applies only to students and former students of the Birch Academy, a developmental disabilities program at Mount Pleasant High School in Providence which once served as a feeder for a now-defunct sheltered workshop in North Providence called Training Through Placement (TTP).

The ISA sought to resolve a finding by the U.S. Department of Justice (DOJ) that large-scale segregation of developmentally disabled youth and adults at Birch and TTP violated the Integration Mandate of the Americans with Disabilities Act (ADA). The matter became the nation’s first “sheltered workshop” settlement.

How McConnell decides to define “substantial compliance” in the context of the ISA will also impact the broader 2014 consent decree, intended to protect all Rhode Island youth and adults with developmental disabilities from a lifetime of day care or low-paying piecework.

In the ISA, both the state and the city of Providence were defendants until late September, when McConnell ended federal oversight of the city. He received glowing reports of a transformed Birch Academy, which today sends students to productive internships that broaden their experiences and sometimes result in regular jobs.

But the state still has detailed obligations under provisions of the 2013 agreement to help former Birch students and former TTP workers find jobs.

On Dec. 23, the DOJ notified McConnell that “it disputes that the state will be in substantial compliance with the Agreement” by July 1 “without a course-correcting change in the State’s approach to compliance.”

The DOJ asked the judge to direct the interim court monitor, A. Anthony Antosh, to “begin working with the State immediately to develop and implement a plan for completing the (2013) Agreement’s highly achievable remaining outcomes and schedule a status conference with the Parties in January 2020 to address next steps.”

A week later, on Dec. 30, lawyers for the state challenged the DOJ, saying the federal government has not documented its specific objections or offered a “clear working definition” of substantial compliance for either the 2013 or 2014 agreements.

The state is already working with Antosh on a definition of substantial compliance, its lawyers said. The lawyers, Marc DeSisto and Kathleen A. Hilton, asked for a formal hearing in January on the issue of substantial compliance, rather than the informal status conference requested by the DOJ.

DeSisto and Hilton said they would be prepared to submit evidence and sworn testimony that the state is meeting its responsibilities under the terms of the ISA.

The agreement itself says only that “substantial compliance is achieved when the state and the city have implemented all of the provisions of the Interim Settlement Agreement for all individuals in the target populations.”

DeSisto and Hilton wrote that “in this context, ‘implement’ means that there are mechanisms and/or policies put into effect of sufficient means to carry out its (the state’s) requirements of the particular benchmark at issue.”

For example, there remain 15 individuals protected by the ISA who have employment goals but have never been employed in the community, DeSisto and Hilton said. The reasons include poor health or challenging behavior, family resistance, legal or forensic issues with the individuals, or extended absences from service programs.

(The state’s memorandum did not specify the total number of persons counted in the ISA, but past reports from the state and the independent court monitor put the total at a maximum of about 125, with fluctuations over time.)

The state could have requested “variances” to exempt these 15 individuals from employment and remove them from the ISA caseload, the lawyers said, but officials have no interest in pursuing this route.

Instead, the state wants to meet the individuals’ needs, “where they are at this time, and (work) on an individualized basis, towards the ultimate goal of employment,” DeSisto and Hilton wrote. They said the state has ”competence” to meet the employment goals, whether or not those goals are actually reached, suggesting that this “competence” demonstrates substantial compliance.

DeSisto and Hilton asserted that the state has achieved full compliance in 52 provisions of the ISA and substantial compliance in the remaining three provisions. But their memorandum to the judge does not describe those respective provisions.

The memo also referred to findings of the previous court monitor, Charles Moseley, who in August assessed the city’s compliance with the agreement but left the state’s compliance with numerous provisions “to be determined.”

DeSisto and Hilton indicated that Moseley followed up on his findings regarding state compliance in an Oct. 1 email with a new report attached. The lawyers included what appears to be an index of Moseley’s findings in three categories; substantial compliance, noncompliance, and “to be determined”, but they did not include the Oct. 1 report itself. Nor does that report appear separately in the court file.

A. Kathryn Power To Lead RI BHDDH

A. Kathryn Power

Rhode Island Governor Gina Raimondo and her Health and Human Services Secretary have tapped A. Kathryn Power, a veteran administrator of mental and behavioral health initiatives at both the state and federal level, to direct the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) – for the second time.

Power led the agency formerly known as the Department of Mental Health, Retardation and Hospitals during the administrations of former governors Bruce Sundlun and Lincoln Almond, from 1993 to 2003.

Known as a staunch consumer and family advocate wherever she has gone, Power left state government to become director of the federal Center for Mental Health Services, a part of the Substance Abuse and Mental Health Services Administration (SAMHSA).

In the last 15 years, she also has served as SAMHSA’s Region One director, providing authoritative advice and assistance on behavioral health policies and innovations to inform the financing and delivery of prevention, treatment, and recovery services.

Raimondo said she was “thrilled that (Power) has agreed to once again assume leadership of BHDDH and I look forward to continuing to work together as we improve outcomes for all Rhode Islanders who live with behavioral health challenges and developmental disabilities.”

“Rhode Island is fortunate to have someone of Kathryn’s stature – possessing such a high level of expertise in behavioral healthcare and developmental disabilities – stepping into this vital position,” said Womazetta Jones, Secretary of the Executive Office of Health and Human Services.

Power said in a statement, “I’m thankful to Governor Raimondo and Secretary Jones for the opportunity to contribute to our state’s evolving system of care for individuals facing behavioral health conditions and developmental disabilities.”

“Our state has made significant progress over the last few decades, but we have more work to do to ensure that all Rhode Islanders have access to the care and support they need on their paths toward recovery and community integration.”

As BHDDH director, Power will oversee a troubled hospital system, developmental disability services in the midst of a ten-year overhaul under federal oversight, and behavioral healthcare issues that include the state’s response to the opioid crisis that permeates communities nationwide.

Power succeeds Rebecca Boss, who is stepping down Dec. 31.

Except for her fifteen years in the federal government, Power has worked in the mental health field in Rhode Island for most of her life.

In addition to having served once as director of BHDDH, she is a former director of the Rhode Island Office of Substance Abuse, the Governor’s Drug Program, and the Rhode Island Anti-Drug Coalition. From l985 to l990, Power served as Executive Director of the Rhode Island Council of Community Mental Health Centers.

She has served as President of the National Association of State Mental Health Program Directors and has received many awards for her work in mental health, substance abuse and civic leadership, as well as recognition for her advocacy on behalf of people with disabilities.

Power received her bachelor’s degree in education from St. Joseph’s College in Maryland, and her master’s degree in education and counseling from Western Maryland College. She is a graduate of the Toll Fellowship program in leadership training of the Council of State.Governments and another program in senior executive leadership at Harvard University’s Kennedy School of Government. Power is also a retired Captain in the U.S. Navy Reserve.

New Olmstead Consent Decree Monitor Wants Reality Check On RI DD System Transformation

A. Anthony Antosh * Photo By Anne Peters

By Gina Macris

As the new federal monitor of a 2014 civil rights consent decree affecting Rhode Islanders with developmental disabilities, A. Anthony Antosh wants to get a reality check on where reform efforts now stand and to create a road map for what remains to be done to enable people to live inclusive lives, in accordance with the U.S. Supreme Court’s Olmstead Decision on the Integration Mandate of the Americans With Disabilities Act.

Antosh’s vision, which parallels the requirements of the consent decree is that:

• Adults with developmental disabilities who once spent their days in sheltered workshops or day care centers will have a chance to work at regular jobs and will be able to do whatever non-work activities they want in the community- with the needed supports.

• Teenagers and those in their early twenties still in school, who are also protected by the consent decree, will get the services they need to make a smooth transition to the world of work and adulthood.

The process for assessing how far the state has moved toward inclusion includes not only a look at the state’s compliance with the consent decree’s prescribed goals, or “benchmarks,” but at the impact on the people’s lives as well, Antosh said.

For example, the state’s “Person-Centered Supported Employment Performance Program” tries to boost the number of people who get hired to bring the state into compliance with target job numbers specified in the consent decree. Antosh says he wants to find out if meeting those target employment numbers also means that everyone who wants to work has a chance to get a job.

Antosh outlined his vision at a Dec. 17 meeting in Warwick with the Employment First Task Force (EFTF), a community-based committee empowered by the consent decree to serve as an advisory group to state government and federal officials.

After his appointment as monitor by U.S. District Court Judge John J. McConnell, Jr., Antosh said, “a lot of people wanted to give me advice but lots of people felt their voices had not been heard. I want them to be heard.”

Antosh said he can’t process calls and emails from all of the thousands of Rhode Islanders with a stake in developmental disability services, but over the next couple of months he wants to hear from as many people as possible.

He turned to EFTF to help him collect and analyze the information in the next few months because its 15 members have broad and deep connections to the various constituencies with a connection to the developmental disability service system as consumers, families or professionals.

The EFTF membership represents non-profit organizations like the RI Developmental Disabilities Council, the Sherlock Center on Disabilities at Rhode Island College, Advocates in Action, Disability Rights Rhode Island, and includes a delegate from the state’s special education directors, the leaders of a statewide developmental disability professional organization, family members with ties to advocacy groups, service providers and adults who themselves receive state supports.

In the next two months, Antosh said, he wants the EFTF members to ask these questions of their constituencies:

• Has life improved as a result of the consent decree reforms already in place?

• What changes must yet be made?

• What will a transformed system look like to them?

Right now, Antosh said, he could go around a room and get a different answer from everyone on “where we are now.”

“I want many data points to know it has changed,” said Antosh, drawing on his background as a researcher and educator in developmental disability and special education issues. Antosh was the original director of the Sherlock Center at Rhode Island College, serving from 1993 until two months ago (check.)

Early in his career, he was one of the plaintiffs the lawsuit that forced the state to close its institution for people with disabilities, the Ladd School. It was shuttered in 1994. And the judge who now presides over the consent decree case, John J. McConnell, Jr., was a young lawyer who represented the plaintiffs in the Ladd school suit, Antosh among them.

Antosh said he has consulted with McConnell on his grass roots, fact-gathering approach. He said he will “do nothing without consultation with the judge.”

McConnell appointed Antosh interim court monitor November 25 to end a stalemate of more than four months between the state and the U.S. Department of Justice on the selection of a replacement to the original consent decree monitor, Charles Moseley, who stepped down for health reasons.

At the EFTF meeting, Antosh, now entering his 51st year in the disabilities field, outlined some of his core beliefs:

• Equity. If an opportunity is available to one, it should be available to all, he said.

• Policy backed by research. He said he has seen well intentioned people putting forward well-intentioned policies which have no impact on people’s lives because there’s no research or evidence to indicate they will work.

• Individualization. Antosh said he has seen many plans for an individualized program of services with information on the goals but no steps outlined on how those goals should be reached. “I believe in real plans,” he said.

• Individual control. People with developmental disabilities and their families can spend their allocation much better if they control it, Antosh said.

Overall, Antosh signaled that he wants flexibility in the system to enable the individualization that is at the heart of the consent decree. “I struggle with rigid anything,” he said.

Rebecca Boss, Director Of RI BHDDH, To Step Down Dec. 31

By Gina Macris

Rebecca Boss * Photo By Anne Peters

Rebecca Boss, Director of the Rhode Island Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) for three and a half years, will step down at the end of this month - in three weeks - to pursue “new opportunities,” according to a departmental announcement December 11.

As director, Boss has supervised the state’s services for adults with developmental disabilities, mental illness, and substance abuse disorders. She has brought stability and effective leadership to the Division of Developmental Disabilities, becoming actively engaged in implementing a 2014 Olmstead federal civil rights consent decree, which calls for a transformation of daytime services for some 4,000 adults with developmental disabilities over a 10-year period.

During her tenure, Rhode Island has emerged as a national model for its response to the opioid crisis, and BHDDH has begun a campaign to combat the stigma of mental illness and substance. But correcting chronic shortcomings at the state hospital has proved problematic. Early in Boss’ tenure, the Eleanor Slater Hospital in Cranston nearly lost its accreditation. And last month, state and federal inspectors found widespread deficiencies in standards of care at the Zambarano unit of the hospital in Burrillville.

In a statement, Boss said, “I have truly enjoyed the 15 years I have spent at the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals serving some of Rhode Island’s most vulnerable individuals.”

“I’m grateful for the opportunity I’ve had to work for the Governor and the people of this state. We’ve built an amazing team of compassionate staff who are dedicated and committed to this work,” she said.

Boss, previously the department’s top official in behavioral healthcare, became acting director in mid- 2016, succeeding Maria Montanaro, and was confirmed by the Senate in May, 2017.

Governor Raimondo said, “Becky Boss is a dedicated public servant, a compassionate leader, and a champion for Rhode Island’s most vulnerable residents.”

“I’m grateful for her 15 years of service to our state, especially her work as Director of BHDDH the past three and a half years. There’s no question that Rhode Island has benefitted from her leadership,” Raimondo said in a statement.

State Sen. Louis DiPalma, D-Middletown, the General Assembly’s most prominent advocate for people with developmental disabilities, said Boss is well respected and “will be missed.” In his 11 years in the Senate, DiPalma said, she is the only gubernatorial nominee he has testified for.

A BHDDH spokesman said the details of Boss’ “next steps will be forthcoming.” The search for a new director will begin immediately, he said. The spokesman could not immediately say whether there will be an interim director. Boss’ annual salary is $141,750.

In the field of developmental disabilities, Boss is leaving in the middle of an 18-month long rate review and analysis of the BHDDH fee-for-service reimbursement system for private service providers. The existing payment methods, enacted in 2011, have been criticized both by the U.S. Department of Justice and the former court monitor in the consent decree case.

Another big initiative underway in the Division of Developmental Disabilities is an effort to reach consensus with the community on the parameters of third-party case management which would satisfy rules of the federal Centers for Medicare and Medicaid Services for programs of care that are free of conflict among funding interests, direct service providers and case managers. The bureaucratic name for the initiative is “Health Home,” but it is neither a home nor a health care center.

Judge Names Antosh Interim Consent Decree Monitor, Bridging Impasse Between DOJ And RI

A. Anthony Antosh File Photo

By Gina Macris

A federal court judge has appointed A. Anthony Antosh interim court monitor for a 2014 civil rights consent decree protecting Rhode Islanders with developmental disabilities, breaking through a logjam created when the state and the U.S. Department of Justice (DOJ) failed to agree on a successor to Charles Moseley.

Antosh is a household name among Rhode Island’s developmental disability advocates, having served for 26 years as director of the Sherlock Center on Disabilities at Rhode Island College, from its inception in 1993 until his retirement just last month.

U.S. District Court Judge John J. McConnell, Jr. issued an order Nov. 25 naming Antosh and saying that “a further delay in appointing a Monitor is not in the best interest of the Parties (the state and the DOJ), or more importantly, those with intellectual and developmental disabilities and their families.”

The appointment, effective Dec. 1, will continue until one of three conditions has been met:

• The state and the DOJ agree on a replacement.

• The two sides submit a list of up to three names each for a replacement.

• The two sides “agree on another mutually agreeable solution.”  

The consent decree required the state and the DOJ to begin searching for a new monitor when Moseley, the original monitor, gave notice July 9 that he would step down Sept. 30, citing medical issues. 

The two sides could not meet a 30-day deadline set in the consent decree for agreeing on a new monitor, ceding the decision to McConnell, who was to name a replacement from list of up to six names –three submitted by each side.

McConnell initially set Sept. 30 as the deadline for the state and the DOJ to submit their respective candidate lists and then extended it until Nov. 25. No candidate lists were forthcoming.

“To help bridge the impasse, the Court requested the Parties submit an agreement on the role and responsibility of the Monitor. Unfortunately, the Parties could not come to agreement,” McConnell wrote. (See related article)

McConnell said he named Antosh on the general authority the consent decree granted him to enforce its provisions and the court’s “inherent jurisdiction to enforce [its] decrees.”

Antosh’s work is very well known to adults with developmental disabilities who advocate for themselves, their families, and professionals in the public and private sectors involved with implementing the consent decree.

Antosh and the Sherlock Center have served as a resource for Moseley, the previous monitor, as well as the state, private service providers, individuals and their families in providing targeted education and training on the inclusive principles of the consent decrees and how to translate them into daily practice.  In addition, the Sherlock Center has provided research to help the state in data collection and technical assistance to private providers trying to shift to community-based, integrated services.

The 36-page consent decree requires the state to correct violations of the Integration Mandate of the Americans With Disabilities Act in accordance with the Olmstead decision of the U.S. Supreme Court.

By 2024, Rhode Island must transform its system of daytime services for adults with developmental disabilities from a segregated model funded for the staffing of sheltered workshops to a community-based network with an emphasis on competitive employment.

DOJ And RI Can't Agree On Next Consent Decree Monitor; Judge McConnell To Decide

By Gina Macris

For more than four months, the U.S. Department of Justice (DOJ) and the state of Rhode Island have been unable to agree on a new monitor of the state’s compliance with a 2014 civil rights consent decree affecting adults with developmental disabilities.

The stalemate now leaves the choice to U.S. District Court Judge John J. McConnell, Jr., who will consider apparent differences between the DOJ and the state over the extent of the monitor’s authority in making his selection. McConnell must choose from up to six candidates – a maximum of three names submitted by each side.

In the absence of a monitor, whose duties include mediation of disputes, a disagreement simmered between the state’s consent decree coordinator and an Employment First Task Force. The argument, concerning the the independence of the task force, escalated to the point of prompting a letter from the DOJ to the state’s lawyers.

The monitor’s job became vacant with the retirement of Charles Moseley, who notified all concerned on July 9 that because of health concerns, he would step down effective Sept. 30.

The state and the DOJ had 30-days to agree on a replacement once Moseley gave his notice, according to the consent decree. After 30 days, the decree says, the judge makes the selection from the candidates submitted by the two sides.

McConnell initially set a deadline of Sept. 30 for the two sides to conclude discussions, but at the end of September, he extended the deadline to Nov. 25, requiring the DOJ and the state to check in with him every two weeks on the progress in talks.

Earlier this month, he asked the two sides to submit statements on their respective views of the role of the consent decree monitor. That deadline also was extended, from Nov. 19 to Nov. 22.

The statements appear similar in many details but suggest that the DOJ envisions greater independence for the monitor than does the state. The DOJ has asked for a phone conference with the state and the judge on the matter of the monitor’s selection.

During the time there’s been no monitor, comparatively small differences between the state’s consent decree coordinator and an Employment First Task Force (EFTF) have coalesced into a dispute over the independence of the Task Force that reached the ears of the DOJ in at least one telephone call.

The EFTF was created by the consent decree to serve as a community-based advisory group to the state, the monitor, and the court. Its members are drawn from many non-profit organizations working to improve the quality of life of adults with developmental disabilities, as well as representation from those receiving services and their families. .

The flap appears to finally have been settled with a Nov. 13 letter from the DOJ to the private lawyers representing the state in the consent decree, Marc DeSisto and Kathleen Hilton.

The letter said EFTF members informed the DOJ that the state’s consent decree coordinator, Brian Gosselin, has told the task force not to communicate with the DOJ without Rhode Island’s oversight.

Gosselin, queried briefly by Developmental Disability News after an EFTF meeting Nov. 19, which he attended with Kathleen Hilton, one of the state’s consent decree lawyers, said it was a “genuine misunderstanding.”

The DOJ said in its letter that it hoped it indeed was a misunderstanding that was at the heart of the disagreement:

“We hope that there is simply a misunderstanding or miscommunication here, as such an instruction would be inconsistent with the role of the Task Force as set out in the Consent Decree,” wrote DOJ. While the consent decree required the state to create the task force,” the letter said, the consent decree ”does not contemplate that the State will supervise its work, dictate its findings, or limit its communications. The Task Force’s members are independent stakeholders whose role is to assist in successful implementation of the Consent Decree, including by providing recommendations to the Monitor and State officials.”

“Indeed, any limitation on open communication would undermine the intended autonomy of the Task Force. We ask Rhode Island to help ensure that the channels of communication between the Employment First Task Force, the United States, and the Monitor are uninhibited,” the letter said. It was signed by trial attorneys Jillian Lenson, Victoria Thomas and Nicole Kovite Zeitler.

The letter was not discussed at the most recent EFTF meeting, but there appeared to be some tension between Gosselin and members of the task force around a discussion that began with EFTF questions about the details of the state’s latest quarterly compliance report and ended with the state’s own questions about ways the task force could do more to work in the field to present the benefits of employment.

Members of the task force indicated they do what they can in the community, but added that they are a group of volunteers, most of them with full time jobs. (Some of them are also family members with responsibilities for individuals with special needs.) Task force members emphasized the advisory nature of the committee, echoing the DOJ letter.

If a monitor were in place, he or she might be expected to mediate differences between the consent decree coordinator and the EFTF before they got the point of requiring a lawyer’s letter from one side to the other. In fact, the consent decree explicitly authorizes the monitor to mediate, although the monitor’s recommendations for settling disputes are not binding, unless they happen to overlap with requirements of the consent decree, according to the DOJ.

As to the monitor’s powers, one of the main points made by the DOJ is its view that the monitor is not bound by the preferences of the state or the DOJ, unless the preferences are also required by the consent decree itself. By the same token, the state is not bound by the DOJ’s preferences and vice-versa, according DOJ view.

The state does not spell out that distinction between either sides’s preferences s the requirements of the consent decree. The differences between the DOJ and the state are highlighted in red or blue type in a in an extra document submitted to McConnell by the federal government.

In the highlighted document, the two sides differ on the monitor’s independence in evaluating situations in which there is a change in the relevant facts, like fluctuating numbers of people in the consent decree “target populations”, or subgroups, who are required to be placed in jobs in the community. (There are four “target populations,” depending on whether or not individuals ever were employees of a sheltered workshop or whether they were in high school or young adults at the time the consent decree was signed.)

If, for example, the number of target population members is lower than the number of target population members required to be placed in integrated employment, the state says that monitor will make recommendations or ask advice from the court on how to evaluate the state’s compliance in light of the changed numbers.

The DOJ, however, just asks that the monitor report the changed numbers to the court.. Its preferences would not put any qualifiers on the monitor’s authority to evaluate the new situation.

There is agreement that the annual budget for the court monitor, including expenses any consultants that may be hired, should not exceed $300,000, as required by the consent decree. The state pays the monitor.

But the DOJ points out that the consent decree allows the monitor to ask for increase that would exceed the $300,000 limit. The state’s document omits that point. Any expenditure over $300,000 would require approval by the state, according to the consent decree.

In many respects, the submissions by the state and the DOJ are identical.

Read the state’s view of the monitor’s role by clicking here.

Read the DOJ’s view of the monitor’s role by clicking here.

Read the DOJ comparison of the two documents by clicking here.

Amy Grattan Named Director of Sherlock Center

Grattan Sherlock Center Photo

By Gina Macris

Amy Grattan, an expert in special education with a focus on early childhood, has been appointed director of the Paul V. Sherlock Center on Disabilities at Rhode Island College.

Grattan “brings a breadth of knowledge and experience in the field of disability and special education,” according to a Sherlock Center statement on her appointment.

Grattan will help ensure that “Rhode Island’s citizens with disabilities have a strong and vibrant advocate” and will “strengthen the many positive collaborative relationships with Rhode Island school systems and community partners,” the statement said.

The Sherlock Center, a federally funded University Center for Excellence in Developmental Disabilities (UCEDD), has served as a key resource as Rhode Island tries to transform its services for adults with developmental disabilities from a segregated model to an inclusive one to comply with the integration mandate of the Americans With Disabilities Act, as required by a 2014 civil rights consent decree.

The Sherlock Center has provided a philosophical framework on inclusion, as well as technical assistance, research and specialized training and educational programs for state employees, direct care workers, families and individuals who themselves receive developmental disability services.

A Sherlock Center staff member since 2005, Grattan has served as a consultant for initiatives aimed at improving early childhood education nationwide and in Rhode Island, collaborating with the state Department of Education and with local school districts. Currently, she also serves as a consultant on early childhood education for the Sherlock Center’s counterpart at the University of Connecticut.

In addition to early childhood education, she has expertise in alternate assessments, standards-based instruction, and helping teachers understand students significant disabilities and autism, accoring to the Sherlock Center statement.

Grattan also has served Rhode Island College as an adjunct professor in special education and early childhood education at the masters’ level. Her appointment became effective Oct. 21, according to a Sherlock Center spokeswoman.

Grattan succeeds A. Anthony Antosh, who had served as director of the Sherlock Center since its inception in 1993. Antosh was responsible for securing the federal grant which established the Sherlock Center as a UCEDD. The center was named after the late Paul V. Sherlock, a special education professor at Rhode Island College and state legislator who became widely known as a tireless advocate for Rhode Islanders with disabilities.

Public Slams RI DD Funding Constraints

By Gina Macris

Funding for Rhode Islanders with developmental disabilities works against the individualized care that is at the core of the state’s vision for social services.

That was the assessment from families and developmental disability professionals who responded to an outside consultant’s call for public comment Nov. 5 about the rates and rate structure governing Rhode Island’s privately-run system of care.

Rick Jacobsen * All Photos By Anne Peters

Rick Jacobsen, a representative of the New England States Consortium Systems Organization (NESCSO), hosted an open-ended conversation with an audience of about 40 people during a public forum at the Barrington Public Library sponsored by the Rhode Island Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH).

There is wide concern among families that “in many cases the funding doesn’t seem to be reflecting the support needs” of the individuals in question, said Claire Rosenbaum, who has a daughter with developmental disabilities and also works as Coordinator of Adult Services at the Sherlock Center on Disabilities at Rhode Island College.

Claire Rosenbaum

Rosenbaum said Individuals with varying needs seem to be assigned the same middle-of-the-road funding, according to what she has heard anecdotally in her position at the Sherlock Center.

Much of the discussion focused on the fee-for-service reimbursement system called Project Sustainability that the state implemented in 2011. The state uses a highly scripted interview process, called the Supports Intensity Scale (SIS) to determine the support needs of each adult approved for developmental disability services. Then a closely held algorithm is applied to the SIS score to come up with one of five funding levels for each person.

The core issue is “how you get from the (assessment) score to the level of funding,” said Cliff Cabral, vice president of Seven Hills Rhode Island, a service provider. That process is a “complete mystery,” he said.

Cliff Cabral

He pointed out that the developer of the assessment, the American Association on Intellectual and Developmental Disabilities, did not intend it to be used as a funding tool.

And Cabral noted that the U.S. Department of Justice (DOJ) has criticized the seeming conflict in having the same state agency both performing the SIS assessment and controlling funding for individuals’ services.

“The need to keep consumers’ resource allocations within budget may influence staff to administer the SIS in a way that reaches the pre-determined budgetary result,” the DOJ said in findings that led to a 2014 consent decree with the state to reform disabilities services.

BHDDH is having a series of community conversations about outsourcing individual service planning and case management functions to a third party to comply with federal conflict-of-interest rules, but some who have attended these sessions say they understand that the parameters of the discussion do not include an outside entity taking on the SIS assessment.

Asked for comment after the forum, BHDDH has issued a statement which said that the discussion around the third-party Health Home “has included an expressed interest in a fire wall between assessment and funding. In these discussions, which are informing the case management redesign, BHDDH has agreed to consider future assessment responsibility.”

If the assessment were put in the hands of a third-party, it would relieve the tension, said Mary Beth Cournoyer, who has a son with developmental disabilities.

In Novemeber, 2016, the SIS was updated and the interviewers were retrained. But at the Barrington forum, Claire Rosenbaum said the re-cast “SIS-A” is not very different than the old one. And parents, including Dorie Carder, whose 20 year-old son has developmental disabilities and a medical condition, reported that interviewers are still argumentative, challenging their perceptions of their children and trying to pull the answers to the questions in one direction or another.

Another problem cited at the forum involved appeals by familes and providers who disagree with the funding resulting from the SIS. Rosenbaum said the appeals require a “ton of staff time.” And she said they must be filed annually or every three months, depending on the situation.

Sue Joinson

Sue Joinson agreed, pointing out that the appeals also cost BHDDH social workers extensive time. Joinson, whose daughter has extensive medical needs, also has worked on appeals in her job as director of nursing at the Corliss Institute, a developmental disabilities service provider.

Dorie Carder, the parent with the 20-year-old son, said the first SIS she had was a “horrible experience.”

Dorie Carder

When she appealed the results, she faced off alone against a BHDDH lawyer and a social work supervisor, who challenged her on the medical details of her son’s case. Then, Carder said, she had to wait a year to get the results of the appeal. Still dissatisfied, she went to the Director of Developmental Disabilities, Kerri Zanchi, who ordered a new SIS interview that resulted in a better funding level.

Before the SIS was adopted in 2011, the state accepted a questionnaire called a personal capacity index, combined with a “situational assessment” of the individual in various settings, to come up with an overall evaluation of need, said Joanne Malise, executive director of Living Innovations, which specializes in supporting adults with developmental disabilities in shared living arrangements in private homes.

Connie and John Susa

At one point, John Susa, a parent and long-time advocate, turned the tables on Jacobsen, the consultant, and asked Jacobsen if he thought Rhode Island has a system where “the money follows the person”, meaning that funding is tailored to meet individual needs.

Jacobsen replied, “There are a lot of constraints that intervene with that” personalized funding.

The audience provided examples of the constraints:

• Agencies must bill for services in 15-minute increments for each person during the day and cannot bill for time if a client is absent for any reason, even though the agency must maintain the same level of staffing

• Transportation funding is limited to one round trip daily, not conducive to community integration

• Staffing for community-based activities is linked to specific ratios that depend on individuals’ funding levels, not to the desired destination of any one person.

• For families who direct a loved one’s individual program, money is forfeited if it is not used within the three-month period for which it is allocated, for whatever reason, including staff shortages or hospitalizations.

Joinson recounted how, on the one hand, her medically-fragile daughter’s social service allocation was unused while she was hospitalized, and on the other hand, her social worker pushed back against her attempts to get a residential placement for her daughter, saying that there wasn’t enough money and others had more pressing needs.

“He tried to make me feel guilty,” Joinson said of the social worker, but a residential placement is what her daughter wants. BHDDH is trying to limit high-cost group home placements and instead wants to increase the number of shared living arrangements in private homes, lower-cost options which families and providers alike say often do not work for those with extensive needs.

Meanwhile, Cabral, of Seven Hills, noted that most adults with developmental disabilities do not have families to advocate for them, leaving the agency to act as the family.

The agency cannot turn down the individuals the state refers for residential placement, but these referrals often need a high level of behavioral support that make them a bad fit with those already living in the agency’s group homes, Cabral said.

NESCSO’s consultants have spent months reaching out to service providers and Jacobsen said they still plan to do some site visits.

But Cournoyer urged Jacobsen and other NESCSO representatives do a “deeper dive” into specifics from the family perspective.

Jacobsen was asked what impact NESCSO’s recommendations would have on the system. He said NESCSO was hired to give BHDDH a range of options, from small changes to blowing up the entire system and putting a new one in place. But in the end, the “choice is not mine,” he said. Instead, BHDDH officials have reserved the right to decide which options to pursue - or not.

Whether NESCSO’s recommendations ultimately result in real improvements will depend on the advocacy of the community, he said.

Jacobsen said he spent 20 years working for Medicaid in Rhode Island and no one ever asked him “how to spend more money.” Quite the opposite, he said.

If BHDDH asks for more money, Jacobsen said, someone “beats them over the head.”

BHDDH was not represented during the discussion, which was recorded and posted on the Facebook page of RI FORCE, a family advocacy group. Asked to comment on the recording, the department provided this context:

“BHDDH has invested sizable resources into a rate review process to provide the needed analytics and options to support system transformation. The department is committed to quality, safety and access through its vision of individualized, person centered, self-determined and community-based supports.

We recognize that this vision requires system transformation. While the system has certainly made progress, the underlying reimbursement system remains grounded in past practices. The purpose of this rate review is to assess the costs of services and explore other models for reimbursement. This work must also extend to understanding the system as a whole for consideration of both structural efficiencies and complexities that could hinder or promote transformation. This work is in progress and this is why feedback and input from the community remains vital and welcomed.

While the department has demonstrated its responsiveness through modifications and investments within the current structure, we look forward to the completed analytics and options that NESCSO will deliver to support both near term and long-term changes.”

RI DD Rate Reviewer To Seek Public Comment at Nov. 5 Forum In Barrington

By Gina Macris

The public will have a chance to talk with consultants reviewing the Rhode Island’s rates and payment structure for developmental disability services during the next community forum sponsored by the state Division of Developmental Disabilities (DDD) Tuesday, Nov. 5 in Barrington.

The forum will run from 4 to 5:30 at the Barrington Public Library, with officials from the New England States Consortium Systems Organization (NESCSO) facilitating a conversation with the audience during the last half of the meeting.

NESCSO’s work will not be completed until next June, but consultants have said they expect to make some interim recommendations by the end of the year, in time to be incorporated into the budget that begins next July 1. .

NESCSO officials also plan to reach out to those served by DDD at the annual statewide conference of Advocates in Action Thursday, Oct. 31 at the Crowne Plaza Hotel in Warwick, according to a spokesman for the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH).

The first half of Tuesday’s meeting will feature updates on the BHDDH strategic plan and its initiatives. The library is at 281 County Road (Route 114), adjacent to the Town Hall and school department offices.

Disability Rights RI and ACLU Sue To End Solitary Confinement For Inmates With Mental illness

From l to R: Steve Brown, exec director of RI ACLU; James Rollins, ACLU Cooperating Attorney and a partner at Nelson, Mullins, Riley & Scarborough, LLP in Boston; Amy Fettig of the ACLU Prison Project; Morna Murray, exec.director of Disability Rights RI; and Charles Feldman of the oasis Wellness and Recovery Centers RI * Photo Courtesty of Disability Rights RI

By Gina Macris

Disability Rights Rhode Island, formerly the RI Disability Law Center, has joined with the American Civil Liberties Union (ACLU) in filing a federal class action lawsuit on behalf of prison inmates with mental illness.

The announcement of the lawsuit on Oct. 25 also signaled that the re-framed Disability Rights Rhode Island will shift to a more systemic approach and aggressive stance in protecting vulnerable populations – including those with developmental disabilities.

In a press conference in Providence, Disability Rights Rhode Island, the ACLU’s National Prison Project and the ACLU’s Rhode Island affiliate announced the class action suit, which seeks to end the alleged inhumane and unconstitutional use of solitary confinement to punish inmates with serious mental illnesses, resulting in their further psychological deterioration. The complaint also seeks other sweeping changes in the treatment of inmates disabled by mental illness.

The lawsuit against the Rhode Island Department of Corrections alleges that the Adult Correctional Institutions (ACI) “subjects hundreds of people to prolonged solitary confinement in tiny, frequently filthy cells where they are kept locked down for 22 to 24 hours a day for weeks, months, and even years at a time,” according to a statement.

These inhumane conditions “subject individuals to serious psychological harm and increasingly acute symptoms” such as anxiety, depression, social withdrawal, paranoia, agitation, and suicidal ideation, according to a joint statement issued by the lawyers on behalf of six principal plaintiffs.

After a legislative commission recommended changes to the ACI’s treatment of inmates with mental illnesses in 2017, the Department of Corrections set up an alternative Residential Treatment Unit, but the plaintiffs say it is wholly inadequate.

Despite scores of inmates in solitary confinement on any given day, the Residential Treatment Unit has a capacity of only 8 men, and there is no alternate facility for women inmates with mental illness, the plaintiffs said.

At the press conference, Morna Murray, the new executive director of Disability Rights Rhode Island, recalled that a former director of behavioral health for the Department of Corrections, psychologist Louis Cerbo, told the state legislative commission on solitary confinement in 2017 that the ACI is the “the largest psychiatric hospital in Rhode Island.”

At the same time, Cerbo’s testimony indicated that the previous year, in 2016, the Department of Corrections had only 11 clinical social workers for a prison population of 3,000, Murray recalled.

A corrections staff untrained in the symptoms of mental illness and the appropriate de-escalation techniques instead uses force –particularly pepper spray – as the reaction of first resort to control inmates, Murray said.

After the press conference, Murray said the organization’s name change and its participation in the lawsuit represent a shift in approach.

“We are increasingly looking to create change on a larger and more systemic level. We know we can effect change for a much larger number of individuals with disabilities that way,“ she said.

Improvements in behavioral healthcare for ACI inmates is the organization’s top priority in the coming year, according to a redesigned website, Disability Rights RI, which is still undergoing improvements, Murray said.

“We will always continue to take individual cases, but we also have staff dedicated to the kind of aggressive and systemic change that this class action lawsuit represents,” Murray said. A more concentrated focus on systemic change will inevitably mean the disability rights lawyers on staff will be unable to take as many individual cases, she said.

But the organization is developing new group training sessions, webinars, and other resources to help creating many more resources, trainings and webinars to help individuals, parents and families to have the capacity to advocate for themselves when they can, Murray said.

“We are presently looking at other issues in the state that may lend themselves to larger actions, either legally or administratively with respect to state agencies,” she said. Before arriving in Rhode Island earlier this year, Murray headed the Connecticut state developmental disability agency, overseeing services for 17,000 people. She has spent most of her career as a public interest lawyer in the private sector, advocating for vulnerable populations.

Disability Rights Rhode Island is one of a nationwide network of federally funded protection and advocacy organizations mandated by Congress in 1975 after the exposure of inhumane conditions at Willowbrook, an institution for people with developmental disabilities on Staten Island. Murray may be contacted at mmurray@drri.org

Views Differ On Role of State Coordinator In RI Olmstead Consent Decree Case

By Gina Macris

The Rhode Island General Assembly’s leading advocate for individuals with developmental disabilities says there’s an inherent conflict in a state employee also serving as state coordinator of the multi-agency efforts to comply with a 2014 civil rights consent decree.

“If you’re working for the state, I don’t know how you work for the 4,000 people” the consent decree seeks to protect, said state Sen. Louis DiPalma, D-Middletown, who also chairs a special legislative commission studying Project Sustainability, the state’s fee-for-service reimbursement system for private providers of developmental disability services.

But the principal lawyer for the state in the consent decree case says that legally, it’s immaterial whether the consent decree coordinator is a state employee or an independent contractor. For many reasons, a state employee is the best choice at this stage of compliance, Marc DeSisto, the lawyer, said in a statement.

From 2016 until earlier this year, the consent decree coordinator, a position required by the agreement, was an independent contractor. The most recent contractor, Tina Spears, left the post in April. She was succeeded by Brian Gosselin, the Chief Strategy Officer for the Executive Office of Human Services (EOHHS.) Gosselin also continues to do his salaried job.

“The consent decree coordinator is a critical role in ensuring compliance with the consent decree and court orders. The responsibility includes coordinating across all state agencies,” DiPalma said in a recent telephone interview. “I don’t know how that’s done on a part time basis” by someone who also has another job.

Since the post was established in 2015 there have been five consent decree coordinators, including Gosselin, who has served as the interim coordinator twice.

In a statement, DeSisto said “the state as a whole is responsible for compliance, not a single coordinator.”

There is no legal impediment to a state employee serving as the coordinator, nor is there a requirement concerning the number of hours a week the coordinator must spend to fulfill those duties, DiSisto said.

“Over time and in recognition of the progress and evolving dynamics concerning compliance, we have refined the role of the coordinator to drive and coordinate the state’s ongoing compliance efforts,” he said.

An EOHHS spokesman said Gosselin was appointed because of his familiarity with the consent decree and because he would bring stability to the leadership of compliance efforts as the consent decree enters the second half of its 10-year span.

“The state cannot afford to have further turnover in the coordinator role,” David Levesque, the EOHHS spokesman said in an email, “especially during a time while there is going to be (a) Court Monitor transition.” Charles Moseley, the original monitor, has retired, and a new one has not yet been selected.

“A state employee is more likely to remain in this position than an independent contractor,” DeSisto said.

DiPalma agrees that “it’s critical that we have stability in that (coordinator’s) position, but no rationale has been given for why we have had five coordinators in the last five years. Without that information, I don’t know that the coordinator we have now is going to last any longer,” he said. He said his comments did not reflect any judgment of Gosselin.

Levesque, the EOHHS spokesman, said, “EOHHS is fortunate to be able to tap someone of Brian’s skill set and experience, particularly his intimate knowledge of the consent decree process in Rhode Island.”

He and DeSisto each said that the U.S. Department of Justice and Moseley, then the monitor, agreed to Gosselin’s appointment.

Gosselin will continue to be paid $117,482 a year as chief strategy officer, Levesque said, and has a team of staffers to support him in that role.

The independent contractors in the job, Mary Madden, Dianne Curran, and Spears, each made $100,000 a year.

Madden’s and Curran’s contracts said they each had the “full authority” of the Governor and the Secretary of EOHHS to oversee and coordinate compliance efforts in all state agencies

Beginning in December, 2018, changes in Spears’ job description and her contract suggest that her role might have become more circumscribed.

In December, the job description was amended to require the coordinator to make “weekly written reports to management team and EOHHS leadership team detailing coordination progress, achievements, challenges and upcoming milestones.”

Two other changes in the job description called for the coordinator to use a “mutually agreed upon escalation protocol to swiftly address issues of concern” and to use a “state approved communications and engagement plan when representing the state at public events and with stakeholders.”

The coordinator was to have a “designated team member” in each of the three primary agencies responsible for consent decree compliance as a point of contact for responding to “issues and concerns.” And the coordinator was required to include a “management team member” on all email communications related to the three respective agencies. The three agencies are the Department of Behavioral Healthcare, Developmental Disabilities, and Hospitals; the Office of Rehabilitation Services (part of the Department of Human Services) and the Rhode Island Department of Education.

At the end of Spears’ one-year contract in January, 2019, it was amended to include the revised job description and extended six months, to June 30, 2019.

Spears, who is now executive director of the Community Provider Network of Rhode Island (CPNRI), a trade association of private service providers, offered her perspective on how the job description changed.

Spears, interviewed in August, said the consent decree coordinator has a unique role in coordinating activities among three separate state agencies to advance compliance with the consent decree, and there is a “natural tug-and-pull kind of dynamic” that can run in several directions.

“There were times when that (tug and pull) became challenging. I’m also the kind of person who’s pretty direct about what I expect and when it becomes challenging I usually address it. So we worked on agreement on how to develop a communications strategy” and a protocol to follow when there was disagreement, she said.

The job at the CPNRI became open when the former director, Donna Martin, announced her departure effective March 1. Spears said the new job was an opportunity to be a leader in systems change “in a way that really elevates our mission, elevates our voice, and elevates our practices.”

Spears, who has parented a child with extensive disabilities and medical issues, has worked at the Rhode Island Parent Information Network as a peer family mentor and government lobbyist. She also has worked as an analyst in the Senate Fiscal Office, where she said she learned about the consent decree and found her calling at the policy level. She left the Senate job to become consent decree coordinator in January, 2018.

Search For RI DD Consent Decree Monitor Extended To Nov. 25; Antosh Among Candidates

By Gina Macris

A. Anthony Antosh, Director of the Sherlock Center on Disabilities at Rhode Island College, is among the candidates under consideration as the next independent court monitor responsible for overseeing implementation of a landmark civil rights decree requiring an overhaul of work and other daytime services for adults with developmental disabilities.

The search for a monitor is underway to succeed Charles Moseley, who retired Monday, Sept. 30.

In a July 23 letter to U.S. District Court Judge John J. McConnell, Jr., lawyers for the DOJ reported that they and officials of the state of Rhode Island “are gathering a list of candidates, with the goal on agreeing upon a candidate by the end of September 2019. We will file a notice with the Court once the Parties reach agreement, or in the event we reach an impasse. Dr. Moseley provided some suggested candidates, including Dr. Antosh, whom we are considering.”

In an email Sept. 30, Antosh has said that he is “aware my name has been floated. If appointed, I would be willing to serve.”

Judge McConnell has extended the search deadline from the end of September to Nov. 25. His order, dated Sept. 27, requires the state and the DOJ to give McConnell a progress report on the search every two weeks.

Antosh ***Photo By Anne Peters

Antosh, as the long-time director of the Sherlock Center on Disabilities at Rhode Island College, has played an integral role in numerous education and training efforts related to the integration of people with disabilities in their communities, the principle at the heart of the consent decree and the Integration Mandate of the Americans With Disabilities Act.

He also has overseen a critical quarterly survey assessing the quality of life of Rhode Islanders with developmental disabilities that has played an important role in helping the state provide data to the consent decree monitor.

Antosh, a lifetime advocate for people with developmental disabilities, was a plaintiff in the lawsuit that succeeded in shutting down the Ladd School in 1994, making Rhode Island the first to de-institutionalize the population.

RI DD Workers To Get Raise Effective Oct. 1

By Gina Macris

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judge Closes Nation's First "Sheltered Workshop" Case Early, Citing Great Strides in Providence

Etta Carmadello, Special Education Director for Providence Schools, is interviewed outside U.S. District Court Sept. 26. Onlookers, left to right, are Christopher Coleman, principal at Mount Pleasant High School; Lisa Vargas-Sinapi, Carmadello’s predecessor in the director’s post; Linda Butera Noble, former Director of Community Services at the Birch Academy at Mount Pleasant High School; and Mary Ann Carroll, the lawyer representing the city of Providence. Carroll credited Vargas-Sinapi, Noble and Carmadello in providing critical leadership that ultimately brought a landmark civil rights case against the city to a close. All photos by Anne Peters.

By Gina Macris

The U. S. District Court in Rhode Island has approved an early conclusion to the nation’s first “sheltered workshop” civil rights complaint, brought six years ago against the city of Providence, with federal officials praising the swift, comprehensive, and lasting efforts at Mount Pleasant High School to transform the lives of its students with intellectual and developmental disabilities.

“The hard, tedious work you did has really had a positive effect on people’s lives,” said Judge John J. McConnell, Jr. in a hearing Sept. 26, addressing a packed gallery in a small courtroom filled with state, city, and school officials involved with developmental disability services.

When the U.S. Department of Justice first investigated in 2013, lawyers found the Birch Academy in an isolated classroom in the basement of Mount Pleasant High, where students “collated jewelry” in a sheltered workshop setting that served as a “pipeline” for a lifetime of such work, said DOJ lawyer Victoria Thomas.

The 2013 civil rights agreement in Providence, based on the Olmstead decision of the U.S. Supreme Court, was the first in the nation to address the rights of individuals with developmental disabilities to live, work, and play in their communities under the Integration Mandate of the Americans With Disabilities Act (ADA).

Today, students attend classes integrated with their typical peers. They receive services designed to help them identify and develop their own interests and skills and to try them out in two 60-day work experiences before they graduate, Thomas said. She said those internships are “life-changing” for some people. For example, Miriam Hospital has offered permanent jobs to several Birch graduates.

Mary Ann Carroll, a lawyer representing the city, said that at the outset, former schools superintendent Susan F. Lusi took swift action in empowering the redesign of the Birch program in the summer of 2013, a job that has involved changing the mindset of staff and “parents who thought that a sheltered workshop was appropriate for their children.”

Judge McConnell, in dismissing the case nine months ahead of schedule, said he imagined that resistance was similar to what he encountered decades ago as a lawyer for activists seeking to close the Ladd School, the state’s now-defunct institution for people with developmental disabilities.

“Change is hard when it has to do with human beings – how they perceive themselves and how others perceive them,” he said.

He said he tells own children that he wants them to be “problem-solvers and not problem identifiers.”

“It’s good to see public servants be problem-solvers,” McConnell said.

McConnell asked if either the DOJ or an independent court monitor had any concerns about maintaining the changes at Mount Pleasant in light of the takeover the Providence school system by the state Department of Education.

The “thought of stalling or going backward is unacceptable,” the judge said.

The monitor, Charles Moseley, said he has not spoken to state education officials about the takeover.

But Thomas, the DOJ lawyer, said she had read the outside report which prompted the state to move ahead with the takeover and found “no overlap” between the faults it found in the district as a whole and the compliance efforts at Mount Pleasant High.

Charles Moseley, Left, and Judge John J. McConnell, Jr., in the Judge’s Chambers After Court Sept. 26

Carroll, the city’s lawyer, said the changes have been made in such a way that she does not feel they will “evaporate.” Emphasizing the teamwork of key leaders in the school department and the support of current and former mayors, she said she hopes the successes at Birch can serve as a model for other cities and school departments around the country.

“The message I want people to take away is that when we work together, we can make things happen,” Carroll said.

Moseley himself is leaving the monitor’s post, but his successor will continue to keep tabs on Mount Pleasant as part of another case which grew out of the initial “Interim Settlement Agreement“ of 2013.

At least three departments of state government still have obligations under a broader, statewide consent decree signed in 2014 to bring integration into services for all Rhode Island public high school students with developmental disabilities. Once they become adults, the state must help them find regular jobs and engage in community activities. The statewide consent decree remains in effect until 2024. The Interim Settlement Agreement was to have expired July 1, 2020.

A spokeswoman for the state Department of Education affirmed its commitment to continuing the reforms at Mount Pleasant in keeping with the 2013 interim agreement and the subsequent statewide consent decree, in response to a recent question from Developmental Disability News.

The Providence school department “will be expected to continue to meet the decree requirements, and our agency will continue to provide support and technical assistance to the entire state to ensure that our school communities are meeting the Employment First policy,” said spokeswoman Meg Geoghegan.

The Employment First Policy, which has been adopted statewide, assumes that all adults with disabilities can work in the community, in keeping with the Integration Mandate of the ADA.

The end of federal oversight at Birch, which over the years has involved between 51 and 65 students at any one time, also has marked the end of Charles Moseley’s role as the independent monitor. He announced in July that he planned to step down at the end of September, citing health concerns.

The consent decree gives the state and the DOJ 30 days after they receive a letter of resignation to reach agreement on a new monitor. If they can’t agree in that time frame, according to the consent decree, each side is to submit the names of up to three candidates to the judge, who will make the decision.

In response to recent questions from Developmental Disability News, a spokesman for the state Executive Office of Health and Human Services said: “DOJ and the state continue to work collaboratively on the selection process for a replacement monitor and have kept the Court aware of their work in this important decision.”

DOJ Urges End To City’s Obligations In Landmark Providence "Sheltered Workshop" Case

By Gina Macris

The U.S. District Court will hear a request by the City of Providence and the U.S. Department of Justice for early termination of a civil rights agreement affecting intellectually challenged students at Mount Pleasant High School who were once trained only to perform repetitive tasks in a sheltered workshop.

The hearing was scheduled for Sept. 26 after the DOJ formally signaled its support for the city’s request, saying the city and its school department have transformed services for students in keeping with the Integration Mandate of the Americans With Disabilities Act.

“Students are now integrated with their classmates and receive services to prepare them for integrated work in careers that match their interests and abilities,” said lawyers for the DOJ.

In accordance with the agreement, “the City will ensure that these changes are lasting,” the DOJ said in written arguments urging Judge John J. McConnell, Jr. to dismiss the case against the city.

The DOJ praised the city’s “rapid implementation” and “consistent adherence” to the provisions of the agreement, saying it has resulted in “substantial compliance” a year ahead of schedule. The government’s conclusion concurs with a recent report filed by an independent court monitor.

“This is a victory for all involved,” the DOJ said.

The DOJ lawyers pointed out that “this agreement was the first in the nation to address the rights of individuals with disabilities to receive integrated employment services instead of segregated workshop services.”

The DOJ did not address the city’s compliance in the context of the impending state takeover of the city’s school system. The request for early dismissal was made last winter - months before the appointment of a new state Commissioner of Education, who received a devastating outside evaluation of the school system from the Johns Hopkins Institute for Educational Policy.

The agreement, signed in 2013, is due to expire on July 1, 2020. It served as a prototype for a subsequent statewide consent decree signed in 2014 which obliges the state to provide transition services to students with developmental disabilities in all high schools across Rhode Island and to transform all work and non-work adult services to comply with the ADA’s Integration mandate, which has been affirmed by the Olmstead decision of the U.S. Supreme Court.

An early dismissal of the city’s obligations under the 2013 Interim Settlement Agreement (ISA) would mean that the city would no longer have to prepare for frequent calls and periodic visits from the monitor and the DOJ lawyers, or to file detailed and time-consuming quarterly reports documenting its compliance efforts. But court retains jurisdiction for a year after the expiration date, according to the DOJ.

Granting the city’s request would not affect the state’s continuing obligations for former Birch students who were sent to the now-defunct sheltered workshop, Training Through Placement, which used the Birch Academy as a pipeline for workers. Nor would it curtail the state’s responsibilities for other adults with developmental disabilities throughout Rhode Island who must have access to integrated work and non-work services under provisions of the separate 2014 consent decree.

The two agreements have fostered an “Employment First” policy, which assumes that all adults with developmental disabilities can work at regular jobs in the community. The policy encompasses self-employment and customized employment, which involves cooperation by employers motivated to re-order established job descriptions to get important tasks done by reliable employees. (Exceptions to the “Employment First” policy are allowed on a case by case basis.)

The DOJ said an independent court monitor, Charles Moseley, has found in a recent report that the city has met or exceeded standards for 45 compliance measures in four categories:

• Career development and transition planning

• Trial work experiences

• Training, outreach, and education about integrated employment for school staff, students and families

• Interagency coordination

School personnel have prepared students to obtain competitive employment as adults through “person-centered” planning, which begins by highlighting each student’s individuality; as well as detailed career development plans and vocational assessments, the DOJ wrote.

Moreover, the city’s efforts have extended to former Birch students who left school as early as 2010. The city has undertaken “significant efforts” to locate them and provide vocational assessments, supported employment services and other assistance to help them find integrated employment. The city has reached nearly 50 former students.

“As noted by the court monitor, this ‘look back’ strategy to correct past discrimination showcased the city’s commitment to the objectives of the ISA,” according to the DOJ.

The government lawyers also agreed that the city provides high quality trial work experiences that are individualized and integrated in the community. The agreement requires that every student have two such internships, each one lasting 60 days, before leaving school.

The city “repeatedly went the extra mile to ensure students’ individualized needs were met” and has satisfied the monitor’s concerns about the few cases in which students lacked a second internship, the DOJ said.

Teachers and other professionals working with students participate in frequent training and have “consistently demonstrated their ability to implement the requirements and goals of the ISA, breathing life into the city’s Employment First Policy,” the DOJ said.

The lawyers cited improvements in the school department’s cooperation with state agencies, including regular consultation with a rehabilitation counselor from the Office of Rehabilitation Services and monthly meetings between the city’s special education director and state officials to review the progress of former students who are receiving adult services.

The city’s swift progress in implementing the agreement and “years of sustained reform” have resulted in a myriad of changes in policy, operations, and attitudes that will be “difficult to dismantle,” the DOJ wrote.

And the success of the ISA, “including considerable outreach and education to students, families, and the community, has spread awareness and the expectation that students with IDD are capable of working in integrated settings with services,” the lawyers wrote.

The DOJ noted that Birch students will continue to benefit from the state’s obligations under the 2014 statewide consent decree, which requires students with developmental disabilities in all Rhode Island high schools to receive transition services similar to those developed through the ISA. The statewide decree is to expire in 2024.

The Sept. 26 hearing before Judge McConnell is scheduled for 10 a.m.

Read the next article (below) for monitor Charles Moseley’s assessment of the city’s compliance efforts under the Interim Settlement Agreement.

In addition, click here for an article on a public discussion of the pros and cons of early termination of the city’s obligations.

Monitor Finds Providence School In "Substantial Compliance" With DD Civil Rights Agreement

By Gina Macris

Educators at Mount Pleasant High School have done a good job integrating special education students with their peers and preparing them for the world of work as adults.

That’s the overall conclusion of a federal court monitor who says the Providence School Department is in “substantial compliance” with a 2013 civil rights agreement which ordered an end to unnecessary segregation of students with intellectual and developmental disabilities, mandating instead an inclusive approach that prepares them to live and work in the community as adults.

The 2013 agreement followed a federal investigation which found that the Birch Academy, a special education program operating within a city high school, was in violation of the Americans With Disabilities Act.

The monitor’s report comes as the state prepares to take control of Providence schools in light of an explosive report by a visiting team from the Johns Hopkins Institute for Education Policy, which found dramatic deficiencies in teaching, learning, achievement and discipline throughout the system.

However, the detailed, 80-page report by the court monitor, Charles Moseley, does not place the school department’s compliance efforts in the context of the Johns Hopkins report or the pending state takeover.

The finding of “substantial compliance” sets the stage for a federal court hearing on whether the city should be granted early relief from federal oversight of the 2013 Interim Settlement Agreement (ISA), which is due to expire July 1, 2020. Even if federal oversight is not curtailed early, the school department was still required to achieve substantial compliance by midsummer of this year to have the agreement terminated as scheduled on July 1, 2020, according to lawyers for the U.S. Department of Justice.

The school department had asked to shorten the length of the agreement months before the appointment of a new state Commissioner of Education, Angelica Infante-Greene, who sent in the Johns Hopkins educators to evaluate the entire school system.

A hearing on the city’s request for early relief is expected in early fall, according to a spokeswoman for U.S. District Court John J. McConnell, Jr., who is presiding over the case.

Moseley said his finding of substantial compliance referred only to the city, and not the state, which is also a defendant in the 2013 case because it licensed a sheltered workshop for adults with developmental disabilities where most Birch students ended up once they left school.

In 2014, after a broader investigation, the DOJ extended the finding of unnecessary segregation to all the state’s sheltered workshops and day care centers for adults with developmental disabilities. The state and the DOJ subsequently signed a separate consent decree mandating a transformation of all Rhode Island’s daytime services for adults with developmental disabilities to an inclusive model over ten years.

Students who leave Birch will continue to receive protections under the provisions of the 2014 consent decree.

‘Culture Of Low Expectations’

Moseley’s report recounted the investigation of the DOJ, which found a “culture of low expectations” at Birch, where students performed menial tasks in a sheltered workshop setting inside the school, often without pay, and were redirected to the work in front of them when they indicated an interest in finding work in the community.

Some students sorted buttons by color into bags or buckets that were emptied by staff at night to be re-sorted the following day, according to the findings.

When students with intellectual and developmental disabilities aged out of the school system, they were sent to a nearby sheltered workshop in North Providence. DOJ found that Birch “served as a direct pipeline” to that workshop, called Training Through Placement. Former Birch students often remained there for decades, even when they asked for a change.

Even before the ISA was signed in June, 2013, Providence closed the sheltered workshop at Birch and replaced the principal, putting the program under the supervision of the special education director. The school department set about redesigning the curriculum with the goal of helping students build skills and confidence to realize individualized post-secondary goals as members of the community at large.

Since 2013, the enrollment at Birch has varied at any given time from 51 to 65 students, according to Moseley’s data.

Moseley praised the redesigned Birch program for its “robust, engaging curriculum;” its efforts to integrate students facing intellectual challenges with their peers throughout the school day, and for providing experiences and activities designed to prepare young people to plan for jobs and otherwise lead regular lives once they finished high school.

In stark contrast, the Johns Hopkins team found a shortage of special education teachers in the system as a whole, with some of them admitting they hadn’t been able to meet their students’ individualized educational goals in years.

Though Mount Pleasant High School was one of the 12 schools visited by the Johns Hopkins observers, their final report does not indicate whether they were briefed on the ISA involving Birch Academy students.

Systemic Improvements Cited

Moseley’s assessment cited improvements in staffing, professional development and leadership, as well as collaboration with the Rhode Island Department of Education and state agencies serving adults with developmental disabilities, particularly in connection with the development of transitional and supported employment services.

One highlight of this type of collaboration has been the creation of Project Search, a work internship program at the Miriam Hospital for students aged 18 to 21. Under this program, the hospital has hired some former Birch students as permanent employees.

Other endeavors offering real-world experiences, including practice in independent living, job discovery and employment –related skills, are the Providence Transition Academy and the Providence Autism School to Tomorrow Academy, Moseley said.

Some Difficulty In Compliance Noted

Moseley noted that the school district has had difficulty meeting two requirements:

• Matching each Birch student with two internships before graduation, each one lasting at least 60 days

• · Linking students and their families with representatives of adult service agencies, the Office of Rehabilitation Services (ORS) and the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH).

Of 11 students who were to leave school at the end of the academic year in June, nine had had two internships by the end of February and the remaining two students each had had one. Of those two, one completed a second internship in June. The family of the remaining student, who uses a wheelchair, did not want her using public transportation to go to and from another trial work experience, Moseley reported. He said the school department should have provided the student other options for transportation.

At the end of any given academic year, Providence reported between 51 percent and 91 percent of students preparing to leave school had completed two trial work experiences, although Moseley said this requirement has been met in the “vast majority” of cases.

He said the school department is making “meaningful efforts” to overcome barriers to the internships, such as transportation, irregular school attendance by some students, specific health care needs of others, and, in some instances, parental resistance.

In introducing students and families to adult services agencies, Moseley faulted the school department for not making it clear to parents that they may ask for a representative of either ORS or BHDDH to attend annual meetings for developing the Individualized Educational Plan (IEP) for their son or daughter. The data on attendance at such meetings showed that ORS or BHDDH had a presence only when students were 19 or older, Moseley said. Transitional services are to be made available beginning at age 14, according to the federal Individuals With Disabilities Education Act.

Moseley said the state has agreed to amend the standard IEP meeting notice to give parents the option of requesting ORS or BHDDH attendance. The state has a contract with the private non-profit Rhode Island Parent Information Network to represent the adult service agencies at IEP meetings of students 14 through 17, Moseley noted.

Mosley said that since 2013, the changes made by the city and its school department “have shifted the focus of education and training toward the accomplishments of key benchmarks and provisions of the ISA.”

Assurances of funding and other important changes have grown out of a collaborative approach involving ORS, BHDDH and others that have resulted in memoranda of understandings “with the intention of producing enduring policy change,” Moseley wrote.

He said his reviews over the past few years “have documented the ability of PPSD (the Providence School Department) to maintain compliance with both the letter and intent of the ISA and strongly suggest that such changes will be maintained as ‘business as usual’ beyond the term of this agreement.”

RI Faces Uphill Climb Halfway Through DD Consent Decree Implementation

Bar graph from RI’s latest report to federal court monitor indicates RI is on track to meet one of three categories of employment targets in 2019. “Youth Exit” refers to those those who left high school between 2013 and 2016. “Sheltered Workshop” and “Day Program” refer to persons who spent most of their time in those respective settings when the consent decree was signed.

By Gina Macris

Halfway through Rhode Island’s decade-long agreement with the federal government to ensure that adults with developmental disabilities can work and enjoy leisure time in the larger community:

• Rhode Island has linked 38 percent of its intellectually challenged residents to acceptable jobs, prompting a federal monitor to warn that it needs to step up its game

• Service providers argue that continued progress will take a larger financial investment than the state is making

• Success stories abound but some families remain skeptical about whether the changes will ever work for their relatives.

Five years and three months after Rhode Island signed a federal consent decree to help adults with developmental disabilities get regular jobs and lead regular lives in their communities, 857 people have found employment. Yet, 1,398 others are still waiting for the right job match or for the services they need to prepare for work.

The pace of adding individuals to the employed category has slowed dramatically. Only 37 individuals were matched with jobs during the first two quarters of the current year. To meet its overall employment target for 2019, the state will have to find suitable job placements for 199 more adults. That would require a pace in the second half of the year that is five times faster than the first half.

Though the federal consent decree was signed in 2014, meaningful efforts to comply with its terms did not get underway until two years later, when a federal judge threatened to hold Rhode Island in contempt and levy fines if it did not take numerous and precise steps to begin compliance in a systematic way. At that point, state officials were struggling even to come up with an accurate count of the number of individuals protected by the consent decree, so inadequate was its data collection.

The active census of the consent decree population has grown since 2016, when the judge ordered the state to improve its record-keeping and the monitor forced the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) and the Rhode Island Department of Education (RIDE) to look again at special education students who might be eligible for adult services.

The most recent figures show that there are 3,764 intellectually challenged adults active either with BHDDH or RIDE who covered by the consent decree.

Of that total, 211 were employed in the community prior to the consent decree. Some have signaled they don’t want to work, either because they are of retirement age or for other reasons. Nearly 1,200 others are still in school and not yet seeking jobs.

Of the 2,255 adults who must be offered employment over the life of the consent decree, 38 percent have landed jobs.

The figures are re-calculated every three months.

Employment data from the state’s report to the consent decree monitor as of June 30, 2019. broken down by categories of persons who must be offered jobs. “Youth exit” refers to those those who left high school between 2013 and 2016. “Sheltered Workshop” and “Day Program” refer to persons who spent most of their time in those respective settings when the consent decree was signed.

Rhode Island agreed to overhaul its services for the developmentally disabled population after an investigation by the U.S. Department of Justice found the state’s over-reliance on segregated sheltered workshops and day care centers violated the integration mandate of the Americans With Disabilities Act.

People with disabilities have the civil right to the supports and services they need to live as part of their communities to the extent that it is therapeutically appropriate, the U.S. Supreme Court said in the Olmstead decision of 1999, which upheld the integration mandate. In other words, integration should be the norm, not the exception.

Some people couldn’t wait to get out of sheltered workshops when the consent decree was signed and quickly found jobs in the community with a little bit of assistance. But some families with sons and daughters who have more complex needs saw sheltered workshops close without any transition plan. For some of them, the consent decree continues to represent a sense of loss.

At a recent public forum, Kerri Zanchi, director of the Division of Developmental Disabilities (DDD), and Brian Gosselin, the state’s consent decree coordinator, had just finished applauding the successes of those who have found jobs or are on their way to shaping their careers, when Trudy Chartier spoke up on behalf of her daughter.

Trudy Chartier * all photos by Anne Peters

Her daughter is 55, deaf, has intellectual and behavioral problems and uses a wheelchair, Chartier said. She wants a job in the community and she’s been looking for five years.

Her daughter was in a sheltered workshop for a while, Chartier said, and “she loved it.”

“She didn’t care about making $2 an hour,” her mother said, and she made friends there. Now, she said her daughter “is not getting anywhere” and is “so dissatisfied.”

At the age of 80, Chartier said, she doesn’t have the energy she once had to help her daughter change things.

Later, Douglas Porch sounded a similar concern. “I can understand that the idea is to get them into the community, but what it’s actually done is destroyed my daughter’s community, because you’ve taken away her friends.”

“She’s in a group home, with nothing for her to do,” Porch said.

Zanchi, the DDD director, said that the consent decree certainly has changed the way people receive services. The intent is “not to isolate, but the opposite, to build communities,” she said.

“If that’s not working and it sounds like it’s not, we need to hear about that,” Zanchi said. “We can help you so that she can engage with her peers more effectively.”

Another parent, Greg Mroczek, also spoke up. “In terms of all the possible models, isn’t a sheltered workshop for a segment of the DD population the best possible model? Isn’t that what people are saying? It worked for my daughter as well,” he said, and nothing has replaced it.

Kerri Zanchi

He asked whether the sheltered workshop is “off the table” in “any way, shape or form” in Rhode Island.

Zanchi talked about the state’s Employment First policy, which values full integration and“investing in the skills and talent of every person we support.”

“We know that individuals of all abilities have had successful employment outcomes. We also know that employment is not necessarily what everybody wants,” Zanchi said.

“Striking that balance is a challenge,” she said. The state’s developmental disability service system and and its partners are working hard to help meet people’s needs, Zanchi said.

Rebecca Boss

When Zanchi was hired at the start of 2017, she was the first professional in developmental disability services to run the Division of Developmental Disabilities in about a decade.

Zanchi and Rebecca Boss, the BHDDH director, have improved the bureaucratic infrastructure to foster employment, professional development, quality control, and communications with families and consumers and the private agencies the department relies on to deliver services that will meet the monitor’s standards.

For example, the developmental disabilities staff has been expanded and reorganized. An electronic data management system has been introduced. BHDDH invited providers and representatives of the community to the table to overhaul regulations governing the operations of the service providers and has maintained a quality assurance advisory council, with community representation.

Broadly speaking, the leadership of Boss and Zanchi has set the tone for a philosophical shift in which employment is part of a long-range campaign to open the door to self-determination for adults with developmental disabilities – in keeping with the mandates of the consent decree. The state’s last sheltered workshop closed in 2018.

The consent decree also has fostered a revival of advocacy in the community and the legislature, where there had been a vacuum once an older generation of leaders had passed on.

So why isn’t the glass half full at the halfway point in the decade-long life of the consent decree? In a word, money.

Advocates say a central issue is the lack of an investment in the ability of the system to reach more people with the array of services that will open doors and enable them to find their places in the community.

To satisfy the requirements of the consent decree, the state relies on the efforts of private agencies that provide the actual direct services.

The federal monitor in the consent decree case, Charles Moseley, has asked the state to get to the bottom of what he described as a lack of “capacity” on the part of these private agencies to take on new clients.

BHDDH is circling around the funding issue with an outside review of the fee-for-service rate structure governing developmental disability services. That analysis is designed to expand the analytical capabilities BHDDH, leaving the policy decisions to the department leadership.

Advocates for adults with developmental disabilities, most prominently state Senator Louis DiPalma, D-Middletown, say there must be a public discussion about how much money it will take in the long run to complete the transformation from sheltered workshops and day care centers into one that assists people in finding their way in life. DiPalma chairs a special legislative commission studying the current fee-for-service system.

In the meantime, DDD is soliciting a proposal for the third iteration of its performance-based supported employment program, which is designed to focus on people who have never held a job. This group includes young people completing high school and seeking adult services for the first time, as well as adults who face multiple challenges and would find it difficult to fill the standard job descriptions put out by employers.

The new Person-Centered Supported Employment Performance Program (PCSEPP 3.0) is expected to launch Jan.1 with an emphasis on “customized” employment, tailored to match an individual’s strengths and interests with the needs of an employer who is willing to carve up the work at hand in a non-traditional way.

The concept of customization is not new.

In Rhode Island, a few adults with developmental disabilities have had customized employment for many years, most often arranged with the support of their families, who hire staff and direct a unique array of services for them rather than relying on an agency.

In addition, the Rhode Island Council on Developmental Disabilities promotes self-employment, a form of customization, through a business incubator created with the help of the Real Pathways RI Project sponsored by the Governor’s Workforce Board.

The DD Council highlights the products and services of self-employed adults with developmental disabilities as part of its annual holiday shopping event, Small Business Saturday Shop RI, scheduled this year for Nov. 30 at the Crowne Plaza Hotel in Warwick.

The U.S. Department of Labor defines customized employment as a “flexible process designed to personalize the employment relationship between a job candidate and an employer in a way that meets the needs of both. It is based on an individualized determination of the strengths, needs, and interests of the person with a disability, and is also designed to meet the specific needs of the employer.”

Since the supported employment program started in 2017, providers have expressed concerns that, because it is tied to the fee-for-service reimbursement system, it does pay for initial investments the agencies might have to make to participate.

Those concerns persisted during a meeting between DDD officials and potential applicants for the customized employment program in mid July. At the providers’ request, DDD has extended the application deadline to October 4.

Womazetta Jones

The state’s new Secretary of Health and Human Services, Womazetta Jones, has promised to be a careful listener to the concerns of the developmental disability community.

Speaking at the recent public forum, after just eight days on the job, Jones acknowledged the state’s efforts to improve services for adults with developmental disabilities but also cautioned against complacency.

Even though the state has substantially increased funding for developmental disabilities in recent years and gained “stable and effective leadership” at BHDDH, “that doesn’t mean anyone in this room or state government is content with recent progress,” she said.

“The moment we think we don’t have more to do, is the moment we have lost our way,” Jones said, signaling that she is available for further discussion of issues affecting people with developmental disabilities.

RI DD Plans For Electronic Visit Verification and "Health Homes" To Be Aired Next Week

By Gina Macris

(This article has been updated.)

Plans for two Important changes in the system that provides services for Rhode Islanders with developmental disabilities will be aired at two important public meetings Aug. 27 and Aug. 28.

On Tuesday, Aug. 27, officials of the state Division of Developmental Disabilities will discuss electronic visit verification (EVV) for services delivered in the homes of consumers and families who direct their own programs.

At that meeting, officials also plan to discuss how consumers who self-direct can gain better access to supported employment services. Meanwhile, a panel of individuals with experience in self-direction of individual programs will offer insight to those who might be considering managing their own programs, according to a BHDDH spokesman.

On Wednesday, Aug. 28, officials will address their proposal to create an independent entity called a “Health Home” to provide case management for state-funded services. Until now, the state has funded and managed these services. All states are required by the Centers for Medicare and Medicaid Services to separate funding from case management to avoid conflicts of interest.

Both meetings will be in the Warwick Public Library, 600 Sandy Lane, Warwick. The Aug. 27 meeting for so-called “self-directed” families will run from 10 to 11:30 a.m. The Aug. 28 meeting on Health Homes, hosted by the advocacy group RI FORCE, will run from 4 to 6 p.m.

RI DD Direct Care Raises To Kick In Oct. 1

By Gina Macris

Direct care workers employed by private agencies serving persons with developmental disabilities in Rhode Island will have to wait until October to receive raises provided in the state budget that took effect last month.

But when the raises do show up in their paychecks, they’ll be for the full amount – 80 to 85 cents an hour, according to state officials.

A spokesman for Nicholas A. Mattiello, speaker of the House of Representatives, had suggested that raises proposed by Governor Gina Raimondo in her budget plan, and enacted by the legislature, might take effect July 1.

An additional pay boost added in the waning days of the General Assembly session would follow on Oct. 1, the speaker’s aide had said.

But state officials now say that both raises will take effect Oct. 1, allowing time for the state to work with the federal government to make technical changes required in the Medicaid program to incorporate the wage increases.

Direct care workers employed by developmental disability service organizations will receive an estimated 80 to 85-cent hourly pay raise effective Oct. 1, according to state officials.

The General Assembly set aside a total of $9.5 million in federal and state Medicaid funds - including $4.5 million from the state budget- for raises to direct care workers. That total consists of $6.2 million proposed by Governor Gina Raimondo in her original budget plan and an additional $3.3 million added by the House in the waning days of the 2019 session of the General Assembly.

At that time, Mattiello’s spokesman said that the pay increase proposed by the Governor would become effective July 1 and the amount added by the House would kick in Oct. 1.

But the final budget language does not specify an effective date.

In a recent public forum, Kerri Zanchi, director of the Division of Developmental Disabilities, said that because the pay raise involves federal Medicaid funds, the state must work with the Centers for Medicare and Medicaid Services to make changes to the federally-authorized reimbursement rate the state pays to privately-run service providers for front-line staff.

Unlike previous pay increases enacted by the legislature, the $9.5 million investment in direct care wages will not extend to supervisors, job coaches and other specialists working with adults with developmental disabilities, state officials have said.

Raising the pay of direct care workers is considered a critical issue in employers’ ability to recruit and retain staff at a time when the state relies on some three dozen privately-run agencies to implement the requirements of a 2014 federal civil rights consent decree. Drawing its authority from the 1999 Olmstead decision of the U.S. Supreme Court, the consent decree requires the state to change to an integrated, community-based model of daytime services by 2024, with an emphasis on employment.

According to a budget analysis by the House Fiscal Office, this year’s raises will boost the pay of direct care workers to about $13.00 an hour. But the state and private providers historically have differed on how far raises will go, because the state allows much less for employee benefits and other employment-related overhead than providers say those expenses actually cost.

A trade association of two thirds of private providers in the state says that on average, entry-level employee make about $11.44 an hour, while more experienced direct care workers make an average of about $12.50 an hour. The Connecticut legislature enacted a minimum wage of $14.75 for developmental disability and personal care workers in 2018. Massachusetts pays $15 an hour for personal care workers, a category which includes many who support adults with developmental disabilities.

NESCSO Will Not Offer “Magic Number” on RI DD Rate Review, Leaving Decisions To BHDDH

Rick Jacobsen *** All Photos By Anne Peters

By Gina Macris

A consultant to a regional consortium reviewing Rhode Island’s developmental disability service system outlined the scope of the group’s work and time line to a July 30 meeting of a special legislative commission.

The consultant also disclosed some preliminary findings about “Project Sustainability,” the fee-for-service reimbursement system also being studied by the General Assembly’s commission. No one appeared surprised by the early findings.

For example, the developmental disabilities caseload has had a compounded annual growth rate of 3 percent in the last five years, from 3,744 to a current total of 4,297.

And the data shows that the private agencies that provide most of the direct services – and bear the brunt of the work necessary to comply with a federal civil rights agreement - operate on precarious financial margins.

The presentation to the Project Sustainability Commission was made by consultant Rick Jacobsen and his boss, Elena Nicolella, executive director of the New England States Consortium Systems Organization (NESCSO), a non-profit group that provides analysis in the fields of health and human services to five states. The meeting was held at the Arnold Conference Center at the Eleanor Slater Hospital.

Nicolella and Jacobsen encountered pushback when they explained the role defined for NESCSO by the state Department Behavioral Healthcare, Developmental Disabilities and Hospitals.(BHDDH).

NESCSO will present options to BHDDH for system improvements toward the project goal of maximizing “opportunities for people to fully participate in their community,” according to a Powerpoint presentation that accompanied the talk. But it won’t deliver an independent recommendation or “magic number” on costs, Jacobsen and Nicolella said.

Tom Kane, CEO of AccessPoint RI, a private provider, said long experience in system-wide reform has taught him that the approach chosen by BHDDH is doomed to fail unless the effort also states the true cost of evolving to an integrated community-based model.

L. to R.: Andrew McQuaide, Kim Einloth, Tom Kane

There has been no “tolerance” for even “having a (public) discussion about the cost of investing in the change process,” said Kane. “If you shift funds in an underfunded system, it’s not going to work. It’s just going to make the hole deeper,” he said.

In the 1980s and 1990s, when advocates pushed to close the Ladd School, the state’s only institution for people with developmental disabilities, “there was a community behind us, and we put an investment in the system in order to make that change happen, and it was dramatic change,” Kane said.

But there was no investment in changing the system in Project Sustainability, enacted in 2011, Kane said.

While the healthcare consultants Burns & Associates recommended an investment that was millions of dollars more than was being spent, Kane said, that number was never made public or discussed in the General Assembly. “What we ended up with was millions of dollars cut,” he said.

A few years later, when the demand grew for more community-based services, those reimbursement rates increased, but rates for center-based care decreased, despite the fact that providers continued to have the same fixed costs, Kane said.

The history of Project Sustainability has prompted a certain amount of “agida” among service providers regarding NESCSO’s work, said Andrew McQuaide, a Commission member.

“Having gone through a similar process and getting an end product that turned the system around and took us backward,”he said, providers are nervous that “we could go through a very similar process and come up with a poor product.”

He said his remarks did not reflect in any way on the current administration. Rebecca Boss, the BHDDH director, and Kerri Zanchi, the director of the Division of Developmental Disabilities, are both commission members and attended the meeting.

McQuaide and A. Anthony Antosh, another commission member, both urged Boss to make public all the data and reports produced by NESCSO, whose contract runs through June, 2020.

Antosh said there ought to be a direct relationship between the goals of the rate review and the recommendations of the commission. Commission members have submitted individual recommendations, which all advocate for the self-determination of adults with developmental disabilities. Their work will be synthesized into a final report, according to the commission chairman, Sen. Louis DiPalma, D-Middletown.

The manner in which NESCSO’s work will be shared with the public is under discussion, Boss said. She and Zanchi said they didn’t think it would be the best use of everyone’s time if the public discussion got bogged down in the minutia of the analytics at each stage in the process.

“We don’t want to be pulled off course but be mindful of the project as a whole,” Zanchi said.

Jacobsen and Nicolella said that NESCSO intends to produce data to enable BHDDH to make both near-term changes and longer-term reforms.

Preliminarily analysis of the audited financial statements of 16 private provider organizations confirms that the system is operating on a very close financial margin, said Jacobsen.

Elena Nicolella

That’s not unusual, he said. Human services agencies across the country are in similar positions. At the same time, the tight finances mean the agencies may tend to be averse to risks like investing in system change or taking on new clients, Jacobsen said.

Jacobsen presented a preliminary analysis of audited financial statements from 16 provider agencies over the last two years, with tables organized according to the number of fiscal reports. The agencies were not identified.

For example, out of a total of 27 audited financial statements, 15 showed deficits and 11 showed surpluses. Of the 11 surpluses, 6 were less than 3 percent of revenues.

In another table summarizing 24 financial statements, 12 of them showed less than a month’s cash on hand at the end of the fiscal year.

And a third table on liquidity said that of a total 24 financial statements, only 4 had working capital to carry their agencies longer than 2 months. At the other extreme, 7 statements said their agencies had no working capital or were lacking up to two months’ worth at the end of the fiscal year.

Jaccobsen said the state has made advance payments to some struggling agencies, but these advances have been carried as liabilities on the books.

Commission members said that for some organizations with multiple sources of income, the agency-wide audited statements do not give an accurate picture of the fiscal margins in developmental disabilities.

Regina Hayes, CEO of Spurwink RI, and Peter Quattromani, CEO of United Cerebral Palsy, suggested that the financial picture is worse than it looked in Jacobsen’s tables and asked him to go back and look only at the income and expenses related to developmental disabilities.

Jacobsen said NESCSO will spend the entire month of August listening to providers. Engagement with consumers and their families is scheduled for September.

An analysis of earnings figures from the Bureau of Labor Statistics for May, 2018 indicated that the wages for direct care workers in Rhode Island are close to the median in comparison to other states. That doesn’t mean that agencies can hire and retain employees, Jacobsen said.

Here too, Jacobsen was asked to look more closely at the figures.

Louis DiPalma and Rebecca Boss

The commission chairman, DiPalma, said the figures Jacobsen used didn’t account for a raise the Connecticut legislature gave to all its developmental disability direct care workers to a minimum of $14.75. In Massachusetts, 30,000 people working as personal care attendants, including many working with adults with developmental disabilities, make $15 an hour, DiPalma said. And the figures Rhode Island reports to the Bureau of Labor Statistics put developmental disability workers in the same category as home health aides, who make more, DiPalma said. According to a trade association representing two thirds of private providers in Rhode Island, entry-level direct care workers make an average of $11.44 an hour. (They are soon to get raises.)

When Jacobsen mentioned that NESCSO plans to compare Rhode Island’s developmental disability services to those in other states, Kane, the AccessPoint CEO, said the consultants must make sure to include the amounts the other states spend on institutional care.

A comparison of community-based services among states does not yield a true picture of total state spending on developmental disabilities, since most other states also have institutions, Kane said. But Rhode Islanders who in other states would be institutionalized live in the community in Rhode Island instead, said Kane.

Jacobsen also presented other preliminary statistics:

• There has been a 15 percent compounded increase in the number of people who direct their own programs in the last five years. NECSCO will look further at whether the increase has occurred by choice or whether it results from individuals and families being unable to find suitable services from agencies. “I suspect it’s a mix of both,” Jacobsen said.

• Of a total of nearly $216.2 million in reimbursement claims paid by the state in the 2018 fiscal year, 51.4 percent was for residential expenses and 48.6 percent was for daytime services, case management, respite care, and independent living or family supports.

· In the category of daytime services, 4.2 percent, or nearly $4.5 million, was spent for employment-related and pre-vocational activities. Increasing employment is one of the main goals of the consent decree.