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Archive for October, 2011

Where’s the beef in Community First?

October 25, 2011 6 comments

We’ve long maintained that the Patrick administration’s agenda of phasing down and closing state developmental centers would ultimately fail to free up additional funding for the community based system.

It’s been nearly three years since the administration announced its plan to close the Fernald, Templeton, Monson, and Glavin Centers and reportedly plow back as much as $45 million a year in the “savings” into beefing up the largely privatized community-based system of care.  That $45 million savings projection was a cornerstone of the administration’s “Community First” initiative.

So far, the administration has succeeded in moving hundreds of residents out of developmental centers, starting with Fernald, which is now emptied of all but 14 of  its residents, who have filed appeals of their transfers.  But nothing remotely close to the $45 million in savings has materialized.  In fact, the opposite has been the case — the administration has continued to cut community-based line items in the Department of Developmental Services budget.

In a November 20 email to members and other advocates, the Association of Developmental Disabilities Providers, which has wholeheartedly supported the closures of the developmental centers, stated the following :

For the last four fiscal years, in order to cope with the effects of the economic collapse of 2008, the Commonwealth’s budget has:

  • deeply cut Family Support programs, leaving 10,000 families without service,  
  • inadequately addressed Chapter 257 rate reform by not introducing sufficient funding to rate making but instead forcing existing programs to redistribute already inadequate funding
  • failed to address historically low salary needs of the community workforce (though the Legislature has recently added the first salary reserve dollars in four years)
  • continued to require community programs to implement state mandates without sufficient funding, including closing sheltered workshops without funding to replace this model in favor of a more inclusive and empowering model.
  • not backed it’s professed interest in Community First and Employment First with funding to make these efforts successful. (my emphasis)

Not exactly a ringing endorsement of the success of the administration’s community-based care delivery model and its promised use of of the savings from the developmental center closures.  We hope the ADDP and the Arc of Massachusetts will reach the next logical step in their argument and urge the administration to cease and desist from closing the centers.

Unfortunately, the ADDP and the Arc of Massachusetts are supporting H.984, known as “The Real Lives Bill,” which appears to continue to rely on the premise that DDS clients should not be given the choice of living in developmental centers.

The bill, sponsored by Rep. Tom Sannicandro,  is intended to provide for more choice for persons with intellectual disabilities.   But it appears to specifically deny consumers the choice of “congregate services.”  In other words, everyone should have a choice, as long as they choose only small, community-based settings.  We believe, however, that the congregate services provided by developmental centers are appropriate for certain people who are unable to benefit from community based care.  And now we’re seeing that closing the congregate care centers is not freeing up community-based funding.

Sannicandro’s bill does appear to recognize that the community-based system has not thus far benefitted from the developmental center phase-downs.  The bill’s text reads:

Too many people are not receiving the assistance they need. The public Medicaid system is reeling from cost pressures. The time has come for individuals with disabilities, families, advocates and providers to work together with policy makers in the administration and legislature in crafting a support system that both increases quality and on average reduces costs whenever possible.

We agree with the language in Sannicandro’s bill on that last point.  We just disagree that closing the developmental centers is the right way to go about it.

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Our questions about the DDS provider licensure system

October 24, 2011 4 comments

How effective is the Department of Developmental Services’ licensing and certification system for operators of community-based group homes in Massachusetts? 

We reviewed 30 online licensure and certification reports and DDS’s revamped licensure and certification manual.   We also reviewed a 2008 licensure survey report by the state Department of Public Health of the state-run Fernald Developmental Center.

Our review found that the federal-state certification process for state developmental centers appears to be significantly more rigorous and comprehensive than the DDS licensing and certification process for state and privately run group homes.   This difference would appear to have implications for the relative safety and wellbeing of clients in the widely dispersed, community-based group home system.

DDS licenses and certifies providers that operate more than 2,700 24-hour residential programs in the state, according to figures provided by the department. 

State-run developmental centers, which must meet strict federal standards of care, are surveyed by state DPH staff, which follows requirements established by the federal Centers for Medicare and Medicaid Services.  The community-based group homes are surveyed by staff of the DDS’s Office of Quality Enhancement, supplemented by volunteer surveyors. 

Here are some of our findings.  (Additional information about our review can be found in the October 2011 issue of The COFAR Voice): 

  • Under the DDS’s licensure and certification process for group home providers, only 25 percent of those group home sites are inspected or surveyed by licensing staff during each two-year licensing period.  This means that a provider can receive a two-year license to operate even though 75 percent of its homes were not inspected.
  • While two of the licensure survey reports we sampled contained detailed findings of deficiencies in care and procedures in the providers’ group homes, the majority of the reports appeared to focus on whether the providers were working to achieve broad and often vaguely worded goals such as  “maximizing independence” and “supporting people to live healthy and active lives.”   One of the most frequently cited problems in the licensure reports was the makeup of the providers’ human rights committees, whether they had bylaws, and how frequently they met.   

In contrast, the 2008 survey report on the Fernald Center contained 56 pages of detailed findings about treatment and care, based on direct observation by surveyors as well as on resident records.  Observed injuries were noted in the CMS-DPH report, as well as direct observations that certain residents were not receiving adequate treatment.

While the Fernald Center had some 180 residents in 2008, many of the group home providers whose reports we reviewed provided services to that many or more individuals in their individual networks of group homes.

  • Few of the DDS provider reports, most of which were only a few pages in length, appeared to mention the results of direct observations about the care provided to individuals in the residences.  None of the reports contained findings of observed signs of injuries to residents or of abuse or neglect. Yet, the state’s Disabled Persons Protection Commission receives some 1,500 complaints of abuse and neglect each year in the community system, more than one third of which are substantiated, according to agency figures.
  • In many cases, the DDS licensure surveyors appeared eager to say positive things about the providers, but even those statements usually did not refer directly to observed care issues. 

For instance, the DDS licensure report for Fidelity House, Inc., stated that a “remarkable” example of  “the way people were valued in their homes” was that “confidential records had one page profiles which carefully described each individual in the first person.”  In a number of cases, the survey reports contained the vague statements that the particular provider being reviewed “takes great pride” in its programs or facilities or, in one case, that the provider’s services were “founded upon a values-based mission.”

  • All of the DDS provider reports reviewed indicated that the providers were granted licenses to operate, even in the relatively rare cases in which potentially serious problems were cited.  In one case, a provider, Behavioral Associates of Massachusetts, was given a one-year conditional license to continue operating even though the license survey found that only two out of six required “quality of life areas” had been achieved.  Among the problems noted by the surveyors were that residents’ confidential records were altered and that the provider’s day program was inappropriately operating in the basement of one of the residences. 

In another case, the Center for Human Development received a two-year license to operate even though there had been three instances in the previous two-year licensing period in which reportable incidents of abuse or neglect in its residences had not been reported to the Disabled Persons Protection Commission as required.

In October 2010, the Kennedy Donovan Center received a recommendation for a “deferred license” for its residential services after failing to meet the standard on 20 indicators of care and services.   The surveyors found that residents in six different group homes had gone more than a year without a physical exam, with two residents having gone 18 months and two having gone 17 months without an exam.  One resident who didn’t have a dental exam for more than two years was later was found to need several fillings and extractions, the report stated.  Another resident, who had had pneumonia was not provided with a follow-up review by a physician.

A deferred license means the agency can continue operating, but has 60 days to correct the problems.  There was no information online to indicate whether those corrections were made. 

  • Of the 30 online reports surveyed, fully one third were out of date on the DDS website, some by as much as two years.  It wasn’t clear whether the DDS has simply been slow in posting licensure reports on its website or whether the licenses may have expired for some of the providers reviewed.   
  • The DDS licensure and certification procedure was revamped in July 2010, based on input from the providers themselves. In 2009, the Association of Developmental Disabilities Providers stated that it was working with DDS to revamp the licensure system and that it was seeking to reduce the number of group home sites surveyed and the time spent surveying in each location.

Among the changes made by DDS in 2010 were a reduction in the licensure survey time spent in group homes from one to two weeks down to 5 working days, according to the online licensure manual.

  • Both the old and revamped reports did not always specify the total number of clients served by each provider or even the total number of group homes run by the provider.  Some reports listed all relevant indicators while others didn’t.  

We plan to bring our findings to the attention of state legislators who deal with DDS issues, many of whom may be unaware that there is any difference in the state’s oversight of developmental centers and community-based care settings.  The claim that the community system provides equal or better care than the developmental centers doesn’t mean much if the oversight of the two systems is not equal.

Help needed on Barney Frank’s lawsuit opt-out bill

October 20, 2011 5 comments

For a number of years, U.S. Rep. Barney Frank has proposed a common-sense piece of legislation which would give guardians of persons with intellectual disabilities a say in federally funded lawsuits supposedly brought on their wards’ behalf.

This year, Frank’s bill (H.R. 2032), is reportedly picking up some steam in Congress, where it was recently referred to the Judiciary Committee’s Constitution Subcommittee.  Tamie Hopp of VOR, a national nonprofit that advocates for a care continuum that includes developmental centers, has termed this “real progress.”  VOR is working to get to the next step, which is a hearing on the bill, either at the subcommittee or the committee level.

H.R. 2032 would prohibit any entity that receives funds from the federal government from filing a class action lawsuit involving the residents of an Intermediate Care Facility for the developmentally disabled (ICF/DD) unless the residents’ guardians have the opportunity to opt out of the suits.

In addition, the bill would require the U.S. Department of Justice to consult with the guardians in any investigations undetaken of developmental centers in which their wards are living, and provide a right of intervention to guardians if the DOJ files a lawsuit.

According to the VOR, there have been dozens of class action suits filed by federally funded legal “Protection and Advocacy” agencies and by the DOJ around the country since the 1970s, seeking primarily to shut state ICFs/DD.  Those lawsuits have brought about the closures of at least 15 developmental centers, resulting in the forced transfers of thousands of residents from their longtime homes, often with tragic consequences.

Despite the record around the country of signficant improvements in the care and conditions in ICFs and the relatively greater levels of abuse and neglect in the community system, we’ve never heard of a case in which the DOJ has brought a legal case against conditions in the privatized community-based system of care.

Thus far, Frank’s bill has 65 co-sponsors in the House, including three of the 10 members of the Massachusetts House delegation — Reps. Richard Neal, Michael Capuano, and James McGovern.  The seven other House members of the delegation have yet to sign on.

COFAR is asking people to call their congressmen and urge them to co-sponsor H.R. 2032 and request that a hearing be scheduled on the bill either by the subcommittee or the full Judiciary Committee.  Advocates of privatized care, including human services contractors around the country, are lobbying in opposition to the bill, as they always do.

In Massachusetts, no federally funded class-action suits have yet been filed against ICFs.  But at least two federally funded P&A organizations — the Disability Law Center and the Center for Public Representation — particpated as parties in court litigation in recent years over the Fernald Developmental Center.  In that litigation, the DLC and the CPR have repeatedly taken the side of the Patrick administration in seeking to close Fernald, and not the side of the residents or their families, who want to stay there.

While the DOJ suits don’t specifically call for the closure of the developmental centers, critics of the DOJ, such as the York Legal Group in Pennsylvania, note that closure of the centers is the DOJ’s ultimate goal.

Legal action brought by families and guardians of developmental center residents beginining in the 1970s brought about significant improvements in care in those facilities to the point where today, these centers provide state-of-the-art care.  It is unfortunate, however, that the federal government and advocates of privatizing public services are today using this same method of class action litigation to work against the interests of those families and guardians. 

In fact, families and guardians are fully capable of filing their own lawsuits if they feel aggrieved by the system and are knowledgeable about the various living options available to them.  They don’t need the government or anyone else to tell them what’s best for them.

You can find telephone and email contact numbers for the Massachusetts House members here.

Another forgotten cost of closing developmental centers

October 14, 2011 1 comment

One of the costs of closing developmental centers for the intellectually disabled, which rarely gets considered in budgetary “savings” analyses, is the cost to affected communities in lost economic activity, jobs, and tax revenues.

Two studies done in Kansas and Illinois have each projected economic impacts of tens of millions of dollars annually on local communities in closing a developmental center in each state.  We have yet to locate such a study in Massachusetts, even though the Patrick administration has targeted the Fernald Developmental Center in Waltham, the Glavin Regional Center in Shrewsbury, the Templeton Developmental Center, and the Monson Developmental Center in Palmer for closure by the end of the coming fiscal year.

Developmental centers provide both direct economic benefits to their surounding communities from employee salaries and so-called ripple or multiplier effects.  Ripple effects include “indirect” sales and jobs in area businesses such as food distributors and office supply firms that provide goods and services to the developmental centers.  And those ripple effects include “induced” sales and jobs supported by the developmental center employees when they patronize restaurants, gas stations, banks, grocery stores, computer stores, convenience stores and much more.

An August 2011 report to the Illinois Department of Human Services by the Institute of Government and Public Affairs at the University of Illinois concluded that closing the Jacksonville Developmental Center in Jacksonville, Ill., would affect 591 jobs and have a ripple effect on $47 million of economic activity in Morgan County and $17 million in the city of Jacksonville. 

In addition, according to the University of Illinois report, the closure of the Jacksonville Center would result in $590,000 in lost state sales and income taxes paid by employees who were laid off and by suppliers to the facilities.

A September 2009 report prepared for the Greater Topeka Chamber of Commerce  on the impact of the Kansas Neurological Institute on the economy of the Topeka area during Fiscal Year 2010 found a direct economic impact of $28 million from the developmental center and an additional ripple effect of $37 million.  Taking into account the KNI’s 570 workers, the developmental center supports a total of 1,311 jobs in the local community, the report said.

The KNI report, written by Impact DataSource, a Texas-based economic consulting and research firm, added that the Kansas developmental center generates some $447,000 a year in local sales taxes and $3.3 million in local property taxes.

In testimony last February to a Kansas legislative committee,  Christy Caldwell, a spokeswoman for the Topeka Chamber of Commerce stated:

If the motive for closing KNI is saving the state dollars, we respectfully ask your very careful consideration of whether there will be real cost savings.  We ask that you consider the economic impact on Topeka; a significant loss for this community, should there be closure.

In Massachusetts, a Department of Developmental Services working group recommended in 2002 that prior to closing any developmental centers, DDS undertake an analysis of the multiplier effect of the closures on the local economies.  The working group also recommended consideration of other factors, such as the community use of the facility and the grounds, cost implications of the use of facility space by other government agencies, projected mothballing costs, and projected “ramp-up” costs for new community programs. 

We’ve checked with state legislators in whose districts the Fernald, Templeton, Glavin, and Monson developmental centers are located, and with local chambers of commerce, and haven’t yet found any such economic impact studies done of  the potential closures of the facilities.  We’ve filed a Public Records request with DDS, asking for any such analyses that may have been done.

The University of Illinois study noted that in additional to quantifiable economic impacts of the Jacksonville center’s closure, there are many less quantitative impacts such as the effect on charitable contributions – both time and money – by the facility employees and the impact of the re-location of facility employees and their families on school district enrollments.  “All of these more qualitative impacts contribute to the fabric of the local community and may be valued just as highly – even if they are more difficult to measure,” the report stated.

There is, of course, the question whether the loss of economic benefits from the closures of the developmental centers might be outweighed by the potential for reuse of the properties.  But those benefits in reusing the properties are largely speculative compared with the concrete benefits provided by the developmental centers themselves.  Caldwell stated in her testimony that the previous closure of the Topeka State Hospital “did not garner the private interest and investment (in the former hospital land) that many believed could be gained when the facility closed.”

In addition to undertaking economic impact analyses prior to closing the four developmental centers in Massachusetts, policy makers in this state should reassess the value of the properties involved and what they could reasonably expect to receive for those properties, given the current state of the economy.

One way to avoid cutting Medicaid

October 3, 2011 2 comments

The Patrick administration’s “Community First” approach to caring for people with intellectual  and other disabilities depends on a huge, $2.6 billion, state and federally funded network of nonprofit contractors.

Many of these contractors or providers are excellent; but, all too often, we hear about cases of abuse, neglect, mismanagement, and fraud, such as the allegations this past weekend by Attorney General Martha Coakley that Adlife Healthcare and three other companies had bilked the state’s Medicaid program out of $10 million.

Adlife Healthcare would seem on the surface to be a shining example of the Community First approach.  The company’s website states that it tailors its health care programs for disabled persons in a manner that “maximizes the client’s independence and dignity.”  The program, the website states, allows clients to remain in the “familiar comfort” of their own homes, and begins with a visit from a registered nurse who then arranges for services from additional nurses, physical therapists, case managers, and home health aides.

All well and good, except that, as Coakley alleges, Adlife charged Medicaid for services without having provided them, including billing for people who had died.  Ultimately, the company over-billed the state by $5.5 million, according to Coakley.

Medicaid, which is one of the state’s largest sources of budgetary spending, funds a wide range of services, from health care for both low income families to care and services for persons with intellectual disabilities in both the state developmental centers and community-based system.   Because of its sheer size, Medicaid nationally is likely to be a source of at least $1.2 trillion in revenue cuts that the “super committee” in Congress is required to recommend by November.

But there are experts around who argue that a significant portion of those cuts would not be necessary if the state and federal governments did a better job in preventing and detecting the kind of fraud that providers such as Adlife are accused of perpetrating in the Medicaid system. 

In his 1996 book, “License to Steal: Why Fraud Plagues America’s Healthcare System,” Malcolm Sparrow maintains that if the health care industry:

learns the art of fraud control, then the industry will have learned  a discriminating way to save money — by investing in the capacity to distinguish between legitimate and illegitimate claims.  The alternative is to use less discriminating methods, such as across-the-board reductions in benefits, further restrictions on eligibility, or lower reimbursement rates for providers.

State Auditor Suzanne Bump has reportedly decided to follow Sparrow’s advice.  According to The Globe, she plans to intensify her office’s focus on Medicaid fraud and has appointed a former federal prosecutor  to head those investigations.  One Medicaid fraud expert told The Globe that most Medicaid fraud is perpetuated by “providers who take advantage of loopholes in regulations to process claims that would be detected by more rigorous analysis.”    

Last week, COFAR President Tom Frain and I met with three members of Bump’s staff, to urge them to investigate the state’s human services provider system, particularly the contracting network funded by the Department of Developmental Services.   We hope Bump’s intensified focus on Medicaid fraud will include the DDS contracting system.

We fully support the community-based system of care in Massachusetts; but as the Adlife and too many other examples show, it is a system that is all too vulnerable to waste, fraud, and abuse and needs much better governmental oversight than is currently the case.