Developmental Disabilities News: Court warns state to stop missing Civil Rights Consent Decree deadlines – Gina Macris

By Gina Macris, Developmental Disabilities News

Amid politely-worded warnings from a federal judge about missing court-ordered deadlines, the state of Rhode Island has laid out a timeline that would put a new system of developmental disability services in place and ready to go by July 1, 2023.

The launching pad for the overhaul will be an outside review by the Burns & Associates Division of Health Management Associates (HMA-Burns) of the rates and associated bureaucracy that governs reimbursement to the private service providers the state relies on to comply with a 2014 civil rights consent decree. 

HMA-Burns will receive nearly $500,000 for five months’ work, from February through June, with an option to renew for up to one year, according to the contract, obtained by Developmental Disability News.

The rates the state pays private service providers are particularly important in alleviating an acute staff shortage that prevents the state from implementing most, if not all, of the reforms required in the consent decree. 

For example, the decree calls for supported employment and non-work activities in the community, which require a lot of one-on-one staffing.

The existing system was designed to pay for staffing in sheltered workshops and day care centers, with little one-on-one time and a preponderance of staffing at ratios of one-to-five or one-to-10.

State officials told U.S. District Court Chief Judge John J. McConnell, Jr. in a hearing Feb. 3 that the rate review will be completed by Dec. 1, 2022.

McConnell told HMA-Burns representative Stephen Pawlowski that “it would have a domino effect on what’s happening here” if the Dec. 1 deadline is not met.

“That Dec. 1 deadline is real. It will be enforced,” the judge said.

The deadline is timed to allow recommendations to be incorporated in the governor’s budget proposal to the General Assembly for the fiscal year beginning July 1, 2023.

“Nearly eight years into the consent decree, it is essential that the state restructure its reimbursement system,” said Jillian Lenson, an attorney for the U.S. Department of Justice. The state is required to ensure all its contractors and vendors comply with the consent decree, she said during the hearing, which was conducted remotely.­­

Throughout the hearing, A. Anthony Antosh, an independent court monitor, emphasized the “urgency” of moving ahead quickly with all the required reforms if the state is to achieve full compliance with the consent decree by its expiration on June 30, 2024.

“When a timeline is not met, and I ask why, I am told, ‘the system,’” Antosh said.

“The system needs to be on time,” he said.

Even so, the lawyer for the state, Marc DeSisto, could not say unequivocally when already-appropriated funds will be released to 29 private service providers who have been awarded – on paper – a total of $4 million in “Transformation Fund” grants to prepare to shift to individualized, community-based services.

Although the General Assembly appropriated $4 million effective last July 1, the Department of Behavioral Health, Developmental Disabilities and Hospitals (BHDDH) only began accepting grant applications in late November and did not finish reviewing them until the end of December.

Those grants are part of a court-ordered “Action Plan” for compliance with the consent decree over the next two and a half years.

DeSisto said the “target date” for release of the funds is March 15.

“It’s difficult to say we will have the money by that day, other than to say that’s the target date,” DeSisto said, expressing concerns about making an ironclad commitment and then “getting into trouble with the Court and the monitor.”

McConnell’s agenda for the hearing included a discussion about moving up Governor McKee’s timetable for wage increases for direct care workers, who would get a bump from $15.75 to $18 an hour in his budget proposal for the fiscal year beginning July 1.

DeSisto said the state was not prepared to discuss such a mid-year boost at the hearing but would be ready to talk “soon.”

The judge did get an explanation of the reasons for the delay in the award of the rate review contract, originally promised by the state Nov. 1 as part of the Action Plan. 

The contract was awarded Jan. 24 to Health Management Associates (HMA), the parent company of Burns & Associates, which HMA acquired in 2020.

Burns & Associates was the firm which helped the state create Project Sustainability in 2010 and 2011, the fee-for-service system which the DOJ has criticized for incentivizing segregated care through sheltered workshops and isolated day care centers.

Of five bidders for the new rate review contract, three met technical qualifications, according to Amanda Rivers, deputy purchasing agent for the state.

But the three proposals varied so much in terms of cost and the number of hours they would devote to the project that the state asked them to submit revised bids with a benchmark of 3,000 hours of effort, Rivers said.

When the second round of bidding was done, in early December, two of the three bidders were tied in the scoring, she said. The purchasing division recommended HMA on cost alone, she said. Rivers described in detail the steps the purchasing division took to finalize its decision in a timeline that stretched into January.

State officials have emphasized that none of the individuals who worked on Project Sustainability more than a decade ago will participate in the new rate review.

But it is clear that HMA will bring to the project the institutional memory and expertise of Burns & Associates, which retains its identity as a division of HMA. 

Pawlowski, managing director of HMA and former vice president of Burns & Associates for more than a decade, will lead the project.

In a presentation during the court hearing, he said he provided some background information for Project Sustainability but didn’t actually work in Rhode Island more than a decade ago.

Since it was implemented in 2011, Project Sustainability has been generally regarded by providers, consumers, and advocates in the developmental disabilities community as a smokescreen for budget cuts, judging from comments made in numerous public forums over the years. 

And the role of Burns & Associates in helping the state develop the controversial fee-for-service reimbursement system has been linked to that negative view, although a principal in the firm returned to Rhode Island in 2018 to make it clear that the state did not follow the rate recommendations the firm made.

In November, 2018, Mark Podrazik, president of the formerly independent Burns & Associates, and now a managing director of HMA, said Rhode Island was already overdue for a rate review. Such adjustments should be made every five years, he said.

Another three years and three months passed, with increasing pressure from the court, before the new rate review contract was signed. In the meantime, the state spent more than $1 million on an outside analysis of the developmental disabilities system designed by BHDDH to omit any recommendations.

In the Feb. 3 hearing, Pawlowski said he understands that “a rate-setting project is just as much a statement of policy.”

“It has been impressed upon us that the reimbursement must meet the standards of the consent decree. We have a number of strategies to engage people in the process.

“We’ve done a lot of this work, and we think we’re pretty good at it, but there’s no substitute for on-the-ground knowledge.”

He said the public comment period should last at least three or four weeks.

Antosh, the independent court monitor, said there’s “a lot to be done in the rate review, but I hope it can be done sooner” than Dec. 1.

He said he wants the system to be “simpler,” with “less time on paperwork, and more time spent on ‘real stuff.’ “

Kevin Savage, Director of the Division of Developmental Disabilities, said, “Rarely does the state get to say that they appreciate a court order.”

But, he said, “I appreciate the ability to refer back to the court order” in working on consent decree tasks with his colleagues in state government.

The state will put forward only proposals that make the system simpler, as Antosh requested, Savage said.

Earlier in the hearing Savage had suggested there are difficulties in coming up with clear recommendations for solving some of the bureaucratic problems associated with the current fee-for-service system, such as a complex application and eligibility process.

Members of the developmental disability community are involved in discussions on solving bureaucratic problems.

Savage said the state will continue to use the Supports Intensity Scale (SIS), a lengthy interview process, to evaluate applicants. Rhode Island applies a never-disclosed mathematical formula to the scores of the SIS to award individual spending allocations to those eligible for services on the basis of their perceived level of independence in daily living, or lack of it.

Antosh said he has asked to see the mathematical formula, or algorithm, applied to the SIS by Feb. 15.  

The SIS was designed by the American Association on Intellectual and Developmental Disabilities to help planners decide what services individuals need, not as a funding tool.  But Rhode Island is not alone in using the SIS in the budgeting process.

Burns & Associates has helped “more than a dozen states in the design of individualized budgets informed by the Supports Intensity Scale’’ in the area of developmental disabilities, according to its website. Burns & Associates helped Rhode Island introduce the SIS in 2011 and for several years monitored developmental disabilities spending for the state.

Over the years, the way Rhode Island uses the SIS has led to millions of dollars of additional awards for supplemental services on appeal.

There is agreement that an additional assessment is needed to make sure the overall evaluation and funding level meets actual needs and minimizes the need for time-consuming annual appeals, Savage said, but there is difficulty in identifying that tool.

Judge McConnell said that as much as funding issues grab headlines, administrative barriers are often the hard part.

He said he spoke from his experience as a young lawyer working with Antosh, the court monitor; the late James Healy, who for many years headed the original ARC of Rhode Island; and the late Paul Sherlock, founder of the Sherlock Center on Disabilities at Rhode Island College and an influential state legislator.

McConnell represented the three in a lawsuit that forced the state to close the Ladd School, the state’s institution for people with developmental disabilities, which was shuttered in 1994.

McConnell said he was “in awe of the commitment of this team headed by Kevin Savage to move mountains.”

Even though he won’t hesitate to hold the state team’s “feet to the fire,” he said, “you have done yeoman’s work.”

 Below is the Monitor’s latest chart summarizing timelines and tasks for compliance with the consent decree:

The chart is part of the Monitor’s most recent comments to the Court, which includes a letter from the state’s lawyer on the status of consent decree compliance.

Read the Monitor’s comments here.

Read the contract between the state and HMA-Burns here.

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Gina Macris is a career journalist with 43 years’ experience as a reporter for the Providence Journal in Providence, RI. She retired in 2012. During her time at the newspaper, she wrote two series about her first-born son, Michael M. Smith. Both series won prizes from the New England Associated Press News Executives Association.  Michael, now in his 30s, appears on the cover page, in front of the Rhode Island State House. 

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