Tri-State Human Service Coalition To Press For More Funding

Photo By Remi Walle/Unsplash

By Gina Macris

Non-profit agencies in Connecticut, Massachusetts, and Rhode Island will hold a virtual presentation for Monday, Dec. 6, asking legislators to fund solutions to a workforce crisis that has curtailed services to some of the region’s most vulnerable people.

Clients of the agencies include those with mental health and addiction issues, developmental disabilities, victims of domestic violence, and elderly persons trying to stay in their own homes.

The Community Provider Network of Rhode Island, The Providers’ Council of Massachusetts, and the Connecticut Community Nonprofit Alliance, representing a total of more than 500 human service agencies, have scheduled the two-hour presentation from 10 a.m. to noon on Monday. Pre-registration is at https://ctnonprofitalliance-org.zoom.us/webinar/register/WN_JJDc9bY9SXSAMHyuGOJCYA

The forum, open to the public, is aimed at policy makers and state legislators, said Tina Spears, executive director of CPNRI, a trade organization focused on services for adults with developmental disabilities.

“While workforce shortages across industries have been well documented, the shortage in the nonprofit sector has been amplified by historic underfunding,” the organizers say. (The Massachusetts legislature appears to be on the verge of passing a $4 billion human services package.)

In Rhode Island most recently, all nine early intervention providers have stopped taking new cases of families with infants and toddlers needing a variety of therapies to treat developmental delays. The children are entitled to these services by law.

Without an influx of money, early intervention and other types of human services “will continue to shrink,” increasing the odds that providers will shut their doors all together, Spears said in a telephone interview December 3.

In the areas of early intervention and children’s services, Rhode Island Governor Dan McKee proposed a budget amendment in October that would include $5.5 million for early intervention and $12.5 million for direct care staff of service providers for children in state care, with some of them languishing in hospital psychiatric programs because there are no beds for them in the community.

The state is being fined $1,000 each day that situation continues.

McKee’s proposal for early intervention and children in state care, part of a $113 million plan for using funds from the federal American Rescue Plan Act (ARPA), would have immediate effect if it passed the General Assembly.

In October, spokesmen for House Speaker Joseph Shekarchi and Senate President Dominick Ruggierio said they are “aware of the crisis and working with their colleagues and stakeholders. They are willing to consider solutions. “

Since then, the House Finance Committee has taken testimony on the workforce crisis, but the House leadership has signaled it will not meet before the regularly-scheduled session of the General Assembly in January.

Asked again whether the General Assembly might meet before the end of the year, the spokesmen for Shekarchi and Ruggierio said Dec. 3 in a statement to Developmental Disability News:

“The House and Senate Finance Committees are in the process of conducting a series of hearings on potential ARPA expenditures, including the Governor’s proposal and ideas from other groups. We are meeting regularly with Governor McKee, as recently as Wednesday, December 1. Our intent remains to act in the near future to address the immediate needs of Rhode Island residents and businesses.”

The category that has undergone perhaps the greatest scrutiny and analysis has been Rhode Island’s services for adults with developmental disabilities, the subject of a 2014 consent decree and multiple court orders intended to correct violations of the Americans With Disabilities Act by transforming a segregated system of care to one that is individualized and integrated in the communities of participants.

The federal oversight connected to the consent decree – which has now run seven years and nearly eight months – is due to expire in another two and a half years, on June 30, 2024.

And the U.S. Department of Justice has made it clear that a new system must be up and running smoothly for at least a year before it will sign off on compliance. That timeline, in effect, allows only 18 months, until July 1, 2023 for the transformation to be complete and full implementation to roll out without a hitch.

But so far, the state has not even put a dollar figure on the cost of such an overhaul.

Still, a spokesman for the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) says the department has every intention of complying with the 2024 deadline.

To avoid contempt of court – and hefty fines - the state laid out a wide-ranging action plan for compliance in October.

The first step is the selection of a consultant to review the rate structure for developmental disability services – expected by the end of the year, according to a BHDDH spokesman. The target date of Dec. 31 is two months beyond the Nov. 1 deadline the state set for itself, although BHDDH has told the court it is working in good faith with the state purchasing division to complete the task.

In the meantime, many adults with developmental disabilities have had their service hours reduced by half or more as the system has failed to recover from the pandemic lock-down of 2020. The consent decree requires 40 hours of service a week. Some service recipients are currently getting less than 10 hours.

After court-ordered negotiations between state officials and providers, the General Assembly raised the starting hourly wage for direct care workers from $13.18 to $15.75, effective July 1.

There has been no detailed analysis yet on the effect of the wage increase on the workforce. But Spears, the CPNRI director, said that anecdotally, the raise seems to have been most effective in persuading existing direct care personnel not to quit their jobs.

The raise seems to have had a modest impact effect in attracting new employees, but “nowhere near” the number needed to comply with the consent decree, she said.

In 2020, a consultant for providers calculated that the state needs to expand the direct care workforce by about 38 percent – to a total of 2845 - to implement the community-based system required by the consent decree.

BHDDH has proposed an $18 starting wage effective next July 1 in its budget request to McKee. By 2024, that rate must move up to $20 an hour, according to an order by Chief Judge John J. McConnell of the U.S. District Court.

With the higher wages, recruitment efforts are expected to emphasize training and professional standards for caregivers, who have complex responsibilities.

RI Misses First Deadline in DD 'Action Plan'

By Gina Macris

A week has passed since the state of Rhode Island was to have awarded a contract for a review of the rates it pays private providers of developmental disabilities services – the first step in an “Action Plan” for correcting long-standing civil rights violations.

The plan, approved by Chief Judge John J. McConnell, Jr. of the U.S. District Court, avoided a contempt hearing and the risk of heavy fines.

The Action Plan says the contract would be awarded Nov. 1, and work would begin Nov. 15.

But on the morning of Nov. 9, the state’s website for the Division of Purchases indicated that the bids were still under review.

A total of five consulting agencies submitted bids. They are Guidehouse, Inc., Health Management Associates, Inc.; Mercer Health and Benefits LLC, Milliman, and Public Consulting Group. The rate review is considered the foundation for changes that would overhaul the service system to promote inclusion of adults with developmental disabilities in their communities - a transformation intended to comply with the Americans With Disabilities Act and a 2014 consent decree.

The bid amounts have not been disclosed, nor has the state made public its budget for the work, which is projected to take about a year.

Asked about the amounts the five firms bid, a spokesman for the state Department of Administration said in a statement late last month:

“As this in an RFP, (request for proposals) the proposals will undergo the technical and cost evaluation review. We cannot comment on the cost until an award is made, nor do we have an estimate when that will happen.”

Efforts to reach several state officials for comment on the delay in awarding the contract were not immediately successful.

In the last two and a half years, the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH) has spent more than $1 million on an analysis of the developmental disabilities system by the New England States Consortium Systems Organization (NESCSO).

NESCSO, which worked 18 months on the project, was instructed to develop various scenarios for change but told not to make any recommendations. The BHDDH director at the time of the contract award, Rebecca Boss, said the work was intended to expand the department’s analytical capability.

Since the project was completed in 2020, BHDDH has not had any public comment on the work.

RI Dodges Contempt With DD Action Plan

By Gina Macris

The Chief Judge of the U.S. District Court welcomed Rhode Island’s action plan to turn around the lives of adults with developmental disabilities, saying in a hearing Oct. 20 that the state has taken “historic and comprehensive” measures to set it on a path to comply with a 2014 civil rights consent decree.

Judge John J. McConnell, Jr. (left) approved the plan, which commits at $50 million in the next few years to stabilize and expand a skilled workforce and promises a structural overhaul of the way services are delivered and providers are paid, according to summaries provided by a lawyer for the state and an independent court monitor.

“This a major step in improving the lives” of adults with developmental disabilities, McConnell said in the hearing, which was streamed remotely via the Internet.

McConnell said that in his 30 years as a lawyer and ten years on the bench, he’s “never seen the state move as quickly, effectively and positively.”

“Make no mistake about it. Moving that mountain was a mammoth undertaking,” McConnell said.

“You have my thanks,” he said, singling out State Sen. Louis DiPalma, D-Middletown, and Kevin Savage, Director of the Division of Developmental Disabilities, for their roles in negotiating the action plan.

Without the action plan, the state could have faced fines of up to $1.5 million a month for contempt of court for continued violations of the consent decree.

The ultimate goal is the systemic restructuring of the system so that those with intellectual and developmental disabilities can live the lives they want in their communities, consistent with the Olmstead decision of the U.S. Supreme Court, McConnell said. The Olmstead decision re-affirmed the Integration Mandate of the Americans With Disabilities Act.

Making a real difference in the lives of those protected by the consent decree “will be another heavy lift,” the judge said. “That’s a long-winded way of saying, good job; there’s a lot of work ahead of you.”

Both the monitor, A. Anthony Antosh, and a lawyer for the U.S. Department of Justice (DOJ), said they will be watching very closely to measure the real-life impact of the action plan on life circumstances of individual service recipients.

Victoria Thomas, the DOJ lawyer, said she and her colleagues in the civil rights division are “cautiously optimistic” that the action plan will achieve the goals of the consent decree by the time it is set to expire in 2024.

“Recent comments indicate that there are many people in Rhode Island that are not getting what they need, want, or are entitled to get” under the law, Thomas said.

Those eligible for services say “they want to be working,” Thomas said.

Families who “rely on day services to function” are essentially trapped,” she said. “They can’t go to work and in some cases can’t leave their homes.”

To focus on the state’s progress, the DOJ and the monitor will review data every 90 days to determine what services eligible persons receive and their duration, Thomas said.

“Rhode Island businesses are eager to hire, and people with developmental disabilities are eager to work,” she said. “The action plan has multiple strategies to do that,” both on a short-term and long-term basis, Thomas said.

Antosh, the court monitor, said the action plan responds to a years-long drive to stabilize and expand the private provider workforce which the state relies on to bring it into compliance with the consent decree, and more recently, a series of court orders spelling out what that effort should look like.

The one that sent ripples through the State House said the state wages must hit $20 an hour by 2024. The action plan says the state will deliver on that pay hike, along with an interim raise, from $15.75 to $18 an hour effective July 1, 2022.

McConnell said “the court’s role is not to tell state what it should do or to run the agency,” a reference with the state Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH.)

“The court’s role is to ensure compliance with the consent decree. The state, after many years, agreed it has systemically violated the rights of people with developmental disabilities All parties agreed the consent decree would be the vehicle to ensure (those) rights,” McConnell said.

Antosh, meanwhile, said the significant investment in funding higher wages will be accompanied by a shift in strategy for recruiting and retaining new staff to offset the fact that the traditional population interested in caregiving jobs is shrinking.

He said there will be a public-private partnership led by the Department of Labor and Training, the Community College of Rhode Island and other workforce and educational organizations. Together, they will re-define the roles of caregivers and creating targeted training programs, professional credentialling, and career ladders.

“A major strategy is to help people to achieve individual career goals,” Antosh said.

He explained other highlights of the action plan including an upcoming rate review, which he described as “the instrument” for changes that hopefully will create a better-functioning system.

Five consulting firms have bid for the job, and the state has committed to awarding the contract by November 1, with the work to be completed in a year’s time. It will include a reimbursement rate schedule that is indexed to the cost of living, Antosh said.

He said he will push to have a finished report sooner than that. The rate review, or portions of it, should be reflected in the next three budgets, he said.

In another change intended to stabilize financing, the state for the first time will include the developmental disabilities caseload in the semi-annual Caseload Estimating Conference, giving policy makers a realistic projection of developmental disability costs as a basis for budget preparations. The first such Caseload Estimating Conference will be later this month.

There will also be changes that will help increase individuals’ access to services by decreasing administrative burdens on providers. For example, the state plans to eliminate a requirement that staffers document their time individually in 15-minute increments for each person in their care, he said.

Another requirement on its way out is linking reimbursement to pre-determined staffing ratios based on each client’s general level of independence, or lack of it. These staffing ratios do not individualize needs, except for those with the most extreme disabilities, and do not take into account the amount of support necessary to carry out a particular task. Antosh said the complicated billing system will be replaced by two different rates.

The state has said the work on the administrative changes will be done by March 31.

Other innovations in the works will aim at increasing funding for transportation enabling the Rhode Island Public Transit Authority to become a Medicaid provider and by setting aside $2 million for the acquisition of technology for people with intellectual and developmental disabilities, Antosh said.

There are already specialized 400 apps available which aim at improving the quality of life for people with varying intellectual and developmental challenges, he said.

Kate Sherlock, the lawyer representing Antosh in recent negotiations, said the will to “get there” by restructuring the system “has been there all along, among consumers, their families, providers, and state officials, but change has been held back by a lack of funding.”

The action plan is a “significant step in the right direction,” she said. “We’ll be watching carefully to see what happens.”

To read the state’s action plan, click here.

To read the monitor’s memorandum on the action plan, click here.

RI Proposes DD Action Plan To Avoid Contempt Of Court

By Gina Macris

The state of Rhode Island would raise the pay of caregivers for adults with developmental disabilities to $20 by mid-2023 as part of an “action plan” submitted Tuesday, Oct. 19, to fend off a contempt hearing in federal court over continued violations of a 2014 consent decree mandating the integration of this population in their communities.

The contempt hearing, which had been scheduled to begin Oct. 18 and run through Oct. 22, was canceled last week without explanation by Chief Judge John J. McConnell, Jr., of the U.S. District Court. There previously had been indications the state was working on a settlement proposal.

The action plan also promised that workers would get an interim raise, from $15.75 an hour to $18 an hour, to take effect July 1, 2022, as well as the development of an “intensive” and coordinated statewide initiative involving the Department of Labor and Training, the Community College of Rhode Island, and other organizations to recruit and retain skilled candidates to fill gaps in the workforce necessary to support adults with developmental disabilities who want to be integrated into their communities.

In addition, a total of $12 million would be set aside for a “transformation fund” aimed at supporting private service providers as they go through the first two parts of a three-part transition period from a system originally framed around segregated group care to one that promotes individualized services in the community. Of the $12 million total, $2 million would be reserved to help families who self-direct their own programs, essentially acting as independent employers and program directors for staff serving individual loved ones.

The remaining $10 million would be divided into grants to enable provider agencies to begin shifting to integrated services during the next 12 months, with provisions for considering more funding to expand program innovations during a third phase.

In addition, the action plan commits the state to setting aside $2 million to help adults with intellectual and developmental challenges acquire technology. While smartphones and tablets have become ubiquitous, many adults with developmental disabilities do not have access to the internet.

Overall, the plan appears to conform to several orders issued by McConnell since the summer of 2020 to bring the state into compliance with the consent decree.

A permanent budgetary, operational, and bureaucratic framework for a new developmental disabilities system would emerge from a rate review study that is expected to begin in coming weeks. The Department of Behavioral Healthcare, Developmental Disabilities and Hospitals, (BHDDH) plans to award the contract by Nov. 1. BHDDH originally required the work to be done in six months, but the action plan said the deadline will be December 1, 2022, a little more than a year from now.

The governor’s budget proposal for the fiscal year beginning July 1, 2022 (Fiscal Year 23) “will recognize” preliminary recommendations of the rate review consultants, and “the State will work in good faith to incorporate the reasonable recommendations set forth in the final rate review project” in the governor’s following budget proposal for the fiscal year beginning July 1, 2023 (Fiscal Year 24), the action plan says.

Because the state needs to expand the workforce and hike wages to deliver on the individualized, community-based supports required by the consent decree, reforms are expected to require a significant financial commitment by the General Assembly.

The upcoming rate review would add dollars and cents to the picture and include recommendations for reimbursement models that would stabilize the finances of provider agencies. Providers say the current fee-for-service model does not pay their actual costs, including free care often given to individuals while the agencies appeal service cuts.

The monetary changes and any new provider reimbursement model would have to be approved by the General Assembly. To move forward, the action plan also needs approval from the U.S. Department of Justice and the court..

To read the state’s action plan, click here.

BHDDH Seeks $18 Hourly Pay For RI DD Workers; $119M In DD ARPA Funding

By Gina Macris

Rhode Island’s developmental disabilities agency seeks to raise the pay of direct care workers to $18 an hour beginning July 1, 2022, a 14 percent hike over the current hourly rate of $15.75.

The raise would be covered by a $44.5 million increase in federal-state Medicaid funding for the privately operated developmental disability service system, according to a budget request submitted to Governor Dan McKee for Fiscal Year 2023 by the state Department of Behavioral Healthcare, Developmental Disabilities, and Hospitals (BHDDH).

Within an overall agency budget of $585.9 million, representing a 12 percent increase, the Division of Developmental Disabilities would get nearly $380 million. That sum would cover both the privately-operated system of services and a state-run network of group homes. Private providers would get a total of about $352 million in federal-state Medicaid funding, about $44.5 million more than the current budget of $307.9 million. The budget for the state-run group homes would remain relatively flat, at about $28 million.

In an Oct. 1 budget letter to the governor, BHDDH Director Richard Charest wrote, “The Division of Developmental Disabilities (DDD) continues its commitment in complying with the terms of the 2014 federal consent decree and providing integrated employment and day services.”

On Oct. 1, BHDDH was facing the prospect of a contempt hearing in U.S. District Court that was to start today, Oct. 18, over continued failure to comply with the 2014 civil rights agreement. But at the same time, the department was negotiating with an independent court monitor to reach a settlement that would avoid hefty fines proposed by the U.S. Department of Justice. On Oct. 13, five days before the hearing was to start,Chief Judge John J. McConnell, Jr. canceled it without explanation. Any settlement has yet to be announced.

The pace of job placements required by the consent decree has slowed, from 78 percent of the target number spelled out in the agreement for January 1, 2019 to 67 percent of the target for January 1, 2021. A lack of services in general, and employment-related support in particular, has been attributed to an acute shortage of direct care workers.

For years, all sectors of the human services have been affected by a workforce shortage, which has been exacerbated by the COVID-19 pandemic. But only programs serving people with developmental disabilities operate with federal oversight in Rhode Island. Chief Judge John J. McConnell Jr. of the U.S. District Court has ordered Rhode Island to raise direct care worker wages to $20 an hour by 2024 to attract new staff.

In its budget request, BHDDH is also asking for a one-time investment of $119.3 million in federal coronavirus relief funds from the American Rescue Plan Act (ARPA) for the developmental disabilities system. That figure represents more than 10 percent of of the $1.13 billion in ARPA funding available to Rhode Island, the only state in New England which has not yet spent any of its allocation.

The $119.3 million total includes capital expenses of nearly $74.5 million for repair and construction of residential and therapeutic facilities and about $44.9 for operational and program changes over the next few years. All the money would be spent by the end of 2025. The proposal acknowledges chronic underfunding of the developmental disabilities system.

The investments are intended to shore up existing services and facilities to achieve a “more holistic, individualized, and community-based system of supports” to comply not only with the consent decree but with the separate Medicaid Home and Community Based Services (HCBS) Final Rule, which requires integration for all Medicaid and Medicare-funded services, including residential programs.

Both the consent decree and the HCBS Final Rule draw their authority from the Olmstead decision of the U.S. Supreme Court, which has ruled that people with disabilities have the right to receive services in the least restrictive environment that is therapeutically appropriate.

The portion of the ARPA request aimed at programmatic and operational changes assumes that there will be a shift from the current fee-for-service reimbursement method for private providers to a “value-based” reimbursement model, although that change has yet to be defined. BHDDH is expected to award a contract in the next two weeks for a consultant’s study to examine rates and methods of reimbursement. The successful bidder would have six months to complete the work.

Within the $44.9 million ARPA request for operations and programs, BHDDH is seeking:

• $25 million for supported employment services, including efforts to bring more services to “BIPOC communities,” a reference to Black and Indigenous peoples and other people of color.

• $17,350,000 to help private providers arrange more integrated housing options, staff training, assistance in tracking the providers’ own performance according to certain measures, and technologies for shifting from fee-for-service to “alternative based payment models.” This segment of the request assumes each of 34 service providers in Rhode Island will get $500,000. It also would pay for a contractor to manage the program.

• $1,150,000 for a community-based mental health intervention response team for people who have both intellectual or developmental disabilities and behavioral issues that put them at risk of hospitalization. Plans for the model program, called START (Systemic, Therapeutic, Assessment, Resource, Treatment) have already been developed. It has been identified as a best practice by the National Academy of Sciences Institute of Medicine.

• $1 million for information and education for service recipients for and their families to ensure better access to services, particularly for people of color, who have been underrepresented in the service caseload.

The $75 million in capital investments would include:

• $60,350,000 in repairs to state-owned provider facilities. Deferred maintenance in group homes “is a drain on state and provider resources (and) a barrier to individuals aging in place,” the proposal said. The condition of some facilities is “not conducive to making individuals feel safe and valued in their homes and part of the larger community,” it said.

• $8,130,000 to build facilities to house 30 young people with developmental disabilities who are making a transition to the adult service system. Currently, these youngsters, particularly those who also have emotional or behavioral issues, languish in facilities for children or in hospitals, creating a backlog in the youth system.

• $6 million for a 24-hour community residential program for people with developmental disabilities being discharged from a hospital or other institution who still need more specialized care than is offered by a regular group home. Such a program would ensure that services are provided in the least restrictive setting as required by HCBS, the proposal said.

Taken together, “these investments will lay the foundation for a DD system that focuses on supporting participants in a way that promotes community integration and development of personal networks and circles of supports,” the proposal said.

It will require a “major shift in thinking and business models” to move from “caretaking” and programs developed by providers to “a focus on what individualized supports people need to be as independent as possible.”

To read the entire BHDDH ARPA proposal for developmental disabilities, click here.

Judge Cancels Contempt Hearing

By Gina Macris

A federal judge has canceled a civil contempt hearing that was to begin Monday, Oct. 18 against the state of Rhode Island over continued for violations of a 2014 consent decree designed to help Rhode Islanders with developmental disabilities lead regular lives in their communities.

Chief Judget John J. McConnell, Jr. of U.S. District Court entered the notice in the court record Oct. 13 but did not give a reason for the cancelation.

State officials have been trying to negotiate a settlement to the contempt proceedings with an independent court monitor. Any agreement would also require the consent of the U.S. Department of Justice (DOJ) and Judge McConnell.

In a separate note on the court record, McConnell denied a recent request of the DOJ to depose the House and Senate fiscal advisors in preparation for the hearing, saying the issue is “moot.”

Coalition Seeks $100M To Fix RI Caregiving Crisis

By Gina Macris

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judge Will Settle Argument Over Witnesses In Consent Decree Case

By Gina Macris

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

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

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

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

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

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

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

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

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

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

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

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

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

Thomas replied:

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

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

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

DOJ, RI Spar Over Contempt In Olmstead Case

Federal Courthouse in Providence

By Gina Macris

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The DOJ has scoffed at that notion. The DOJ said in its original filing in August that it is prepared to show the “State failed even to ask its Legislature for a sufficient appropriation, and that the State failed to make efficient use even of the resources it had – for example, by failing to modify State rules and incentives that favor providers of less integrated services over providers of more integrated services.

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

By Gina Macris

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

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

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

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

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

If necessary, the DOJ said, it will present evidence in October that state “failed even to ask its Legislature for a sufficient appropriation” and that it “failed to make efficient use even of the resources it had – for example, by failing to modify State rules and incentives that favor providers of less integrated services over providers of more integrated services.”

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

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

The proposed schedule of fines:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Employers Advancing DD Worker Raises While State Updates Reimbursement System

By Gina Macris

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

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

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

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

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

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

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

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

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

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

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

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

Delta Variant Prompts Concerns About New RI In-Person Open Meeting Rules

This article is reprinted with permission from RINewsToday

July 24, 2021/RINewsToday

Exclusive to RINewsToday

By Bob Cooper, Executive Secretary, RI Governor’s Commission on Disabilities

Cooper Photo Courtesy RINEWSTODAY

Friday July 23rd was the last day people with underlying health conditions that increase their risk of severe COVID-19 complications are able to safely participate on local and state government boards and commissions, via the telecommunication devices (Zoom, MS Teams, telephone).

The COVID Executive Order that allowed the use of telecommunication devices by members of local and state government boards and commissions expired.

Within the community of people with disabilities, there is fear of going back to in-person meetings while the COVID Delta Variant is present and is capable of infecting already vaccinated people.

Do we resign from a government board to protect our health? Do we take the chance that everyone attending a meeting is not only vaccinated but hasn’t become a “breakthrough” carrier?

“From a nurse’s viewpoint and a member of the Governors Vaccination committee, I am opposed. I would not have felt this way at the beginning of July, but have since reconsidered it. With the numbers soaring again, it will endanger people who could be vulnerable. Your group [Governor’s Commission on Disabilities] is a perfect example of that vulnerability. Many people fearful of this escalation will not attend as they would on Zoom. Again it would be harmful to rescind this order” said Kathleen Heren, Rhode Island State Long Term Care Ombudsman.

Deb Kney of Advocates in Action observed, “The fact is, there’s really no way to know who is vaccinated, and who isn’t, so why risk people who may have compromised immune systems? I say that from a professional point of view, but also as someone who’s immunocompromised. I also know from experience over the previous year that we’ve had a higher attendance rate at public meetings than in previous years with in-person meetings. If nothing else, Zoom helped us take on that age-old LACK OF TRANSPORTATION issue that so many of the people we work with, and for, are forced to deal with day to day.”

Tina G. Pedersen, RAMP (Real Access Motivates Progress, President / CEO / Founder said, “I believe there should be a hybrid model, for I see pros and cons on either side. I also think it should be a guideline of space for meetings. Example, the conference room at the GCD (Governor’s Commission on Disabilities) does not allow space to distance with all of us [present] and mobility devices. With the Delta Variant, and some unvaccinated, this is a very big risk to some.”

The Governor’s Commission on Disabilities has limited authority to “[g]rant a waiver that allows a member to participate by electronic communication or telephone communication only if the member’s disability would prevent him/her from being physically present at the meeting location, and the use of such communication is the only reasonable accommodation”.

The Commission is seeking comments as it develops guidance regarding the medical conditions that would not allow a member of a public body from attending meetings “solely by reason of his or her disability” from participating at a meeting of a public body due to the heightened risk of exposure to attendees who may be COVID-19 positive.

Since the Executive Order expires Friday, 7/23/21, please submit comments to Bob Cooper, via email, bob.cooper@gcd.ri.gov; fax 401-462-0106, or mail John O. Pastore Center, 2 Cherry Dale Court, Cranston, RI 02920-3049, by Wednesday 7/28/21.

Bob Cooper, Executive Secretary, RI Governor’s Commission on Disabilities

Background

Governor McKee’s Executive Order 21-72 expired on July 23rd and virtual or teleconference meetings will no longer be allowed. Public bodies must return to meeting in-person in accordance with the Open Meetings Act.

Starting Saturday, July 24th, ALL public bodies (public boards and commissions) MUST meet fully in-person, to stay compliant with the Open Meetings Act.

Public bodies can livestream their meetings while meeting in-person. However, a member of a public body cannot join their meeting virtually, even if the public has formal access to the meeting in public and virtually.

Regarding testimony, public bodies may permit virtual testimony. However, if the public body does permit virtual testimony, it must also permit in-person testimony.

Filing requirements for meeting agendas and minutes remain the same. Contact for more details and questions: Public Information team at: opengovernment@sos.ri.gov or (401) 222-3983.

To read open meetings guidance from the Office of the Attorney General of Rhode Island, click here.

RI Faces Contempt Hearing Over Non-Compliance With Olmstead Consent Decree

By Gina Macris

Judge McConnell

Chief Judge John J. McConnell, Jr. of the U.S. District Court has begun formal contempt proceedings against the state of Rhode Island in connection with its failure to comply with a 2014 civil rights consent decree affecting adults with developmental disabilities.

In an order issued July 12, McConnell scheduled a five-day “show cause” hearing for Oct. 18 to 22, allowing the state to defend itself against a contempt finding.

McConnell noted that the state has just three years to reach full compliance by the consent decree deadline in 2024. (The U.S. Department of Justice (DOJ) has indicated in the past that it will not sign off on compliance until all the required changes have been in place for at least a year.)

With the 2024 deadline fast approaching, the state’s failure to make more progress on two broad issues, despite three orders from the judge in the last six months, has set the stage for the upcoming hearing.

In general, the state has not addressed a chronic shortage of workers in the existing system of services, nor has it shown how it plans to overhaul that system, as required by the consent decree, to support adults with developmental disabilities in their communities.

The General Assembly recently set aside $39.7 million to raise the wages of front-line caregivers in the private sector, whose work the state relies on to bring it in line with consent decree requirements.

But the pay increases alone may be too little and too late to put a dent in the shortage of workers needed to provide broad-scale supports in the community for adults with developmental disabilities.

Nor has the state fulfilled another key promise to overhaul a fee-for-service reimbursement system for private service providers that also hobbles providers’ ability to provide support for individualized work and community activities because of a bureaucracy originally designed for segregated care.

In the consent decree, signed by then-governor Lincoln Chafee, the state promised to correct an over-reliance on segregated settings, which the DOJ found violated the Integration Mandate of the Americans With Disabilities Act, as it was underscored by the Olmstead decision of the U.S. Supreme Court in 1999.

More than seven years after the consent decree was signed, the state must still “transform the system for providing services and supports and must achieve and maintain sufficient capacity for supported employment and integrated day services,” McConnell said, summing up the latest report from an independent court monitor, A. Anthony Antosh, which was submitted to him May 31.
McConnell highlighted key points from Antosh’s report:

• Integrated employment goals had been met for only 52 percent of former employees in sheltered workshops and for 79.4 percent of those originally segregated in day care centers. (Sheltered workshops were eliminated in 2018.)

• Only 55 percent of all adults covered by the consent decree were participating in community-based, non-work activities, and for an average of slightly less than 10 hours a week, below the standards set by the consent decree.

• These deficiencies were caused by a shortage of more than 1000 direct care workers. A consultants’ study done last fall showed that the state needed 2845 direct care workers to comply with the consent decree but only had 1764 in the workforce, leaving a gap of 1081.

In addition, the court monitor concluded that the state has not fully complied with three court orders McConnell has issued since Jan. 6 to get the state to pick up the pace of reform measures.

These orders gave the state until June 30 to develop a three-year budget strategy for compliance, which was not forthcoming. The judge’s orders included two measures to address the worker shortage:

• Immediate increases to reimbursement rates that enable private service providers and families directing their own programs to pay wages competitive with those offered by Massachusetts, Connecticut, and a parallel group home system run directly by the state of Rhode Island. (The recent rate increases are expected to add more than $2 to the hourly pay of front-line workers but are still less than wages of the neighboring states and the state-run group home system.)

• A roadmap for raising wages to $20 an hour by 2024.

McConnell also required the three-year compliance plan to include:

• A structural overhaul of the reimbursement system to promote integration, as well as funding to support it.

• Changes to allow adults with developmental disabilities and their families more control and flexibility in planning purposeful programs of service aligned with individual budgets.

• Increased funding for transportation.

• Per-capita funding for acquiring technology to help individuals with developmental disabilities.

In one of the orders issued earlier this year, McConnell said the state could submit an alternative three-year strategy which did not follow his own outline but still would result in compliance with the consent decree. The state submitted nothing.

Leading up to the contempt hearing in October, McConnell laid out a schedule for an exchange of information that involves Antosh, the court monitor; the DOJ, and lawyers for the state.

The first two deadlines affect the monitor, who must submit a list of witnesses by July 16 and a written preview of their testimony by July 30.

After that, the state and the DOJ will have a week – until August 6 – to comment on the monitor’s reports and the monitor will have another week – until Aug. 13 – to finalize his reports. Additional deadlines on the schedule pertain to depositions, witness lists, and disclosure of witness statements and expert reports to be submitted by the DOJ and the state’s lawyers, Marc DeSisto and Kathleen Hilton. To read McConnell’s order, click here.

RI State Budget Advances; DD Forum Thursday

By Gina Macris

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

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

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

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

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

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

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

Richard Charest

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

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

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

RI House To Vote On Pay Hikes For RI DD Workers

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

By Gina Macris

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

By Gina Macris

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

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

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

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

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

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

I/DD Population Sitting At Home

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

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

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

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

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

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

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

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

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

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

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

House Fiscal Office

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

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

SPEARS CPNRI

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

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

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

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

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

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

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

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

Ruggiero Capitol TV

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

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

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

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

SAVAGE

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

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

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

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

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

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

The negotiations took too long, he acknowledged.

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

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

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

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

Emphasis on Civil Rights

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

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

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

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

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

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

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

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

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

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

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

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

By Gina Macris

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

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

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

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

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

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

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

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

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

According to the agenda for Thursday’s hearing:

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

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

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

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

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

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

DiPalma Photo by Anne Peters

By Gina Macris

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

By Gina Macris

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

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

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

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

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

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

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

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

FERLAND

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

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

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

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

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

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

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

Antosh

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

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

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

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

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

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

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

McConnell

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read the monitor’s latest report.

Read the consultants’ report on the worker shortage.

Former Hospital CEO Tapped To Lead RI BHDDH

By Gina Macris

Richard Charest, former president and CEO of Landmark Medical Center and currently a consultant to the troubled Eleanor Slater Hospital, has been nominated by Rhode Island Governor Dan McKee to lead the public hospital’s parent agency, the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH).

McKee and Womazetta Jones, Secretary of Health and Human Services, made the announcement May 26, saying, "We are confident that Richard's decades of experience in the health care field have prepared him to lead this department, which provides vital services and support to some of Rhode Island’s most vulnerable populations."

McKee has submitted Charest’s name to the Senate for its advice and consent. “We are pleased to have recruited a strong candidate who can help improve departmental policy, operations, staffing and patient care,” McKee said in a statement.

Secretary Jones, meanwhile, said that “BHDDH, particularly Eleanor Slater Hospital, has many urgent needs that will benefit from Richard’s leadership and healthcare and hospital management experience.”

“Those who rely on BHDDH for their behavioral and medical needs deserve the best care possible,” she said.

Neither Jones nor McKee mentioned the needs of adults with developmental disabilities in their statement. Roughly two thirds of the $486 million BHDDH budget is allocated to the Division of Developmental Disabilities, which is grappling with a workforce crisis and an approaching deadline for complying with a long-standing civil rights decree.

Charest worked his way up the ladder at Landmark Medical Center, where he “successfully led hospital operations and finances through receivership, reassured the community and engaged employees and medical staff to ensure uninterrupted high-quality care,” according to the statement from McKee and Jones. Charest also has served as President and CEO of the Rehabilitation Hospital of Rhode Island.

He has an undergraduate degree in pharmacy from Northeastern University and an MBA in Health Care Administration from Bryant University.