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New DDS eligibility law will leave many out in the cold

August 19, 2014 2 comments

Like at least two other bills signed into law this month, a new law that will make adults with autism and certain other conditions eligible for services from the Department of Developmental Services was the subject of closed-door negotiations between key legislators, selected advocates, corporate providers, and the department during the past legislative session.

And like the new “Real Lives” and national background check laws, the resulting omnibus DDS eligibility law, while well-intentioned, raises a number of uncertainties and questions.

The problematic definition of “developmental disability”

The new law specifies that in addition to people with intellectual disabilities, people with autism and conditions known as Prader-Willi Syndrome  and Smith-Magenis Syndrome will be eligible for DDS services.  Until now, state law has restricted eligibility for DDS services to people with “intellectual disabilities,” as measured by a score of approximately 70 or below on an IQ test.

The existing eligibility standard has left out many people with developmental disabilities, including autism, even though those conditions may severely restrict an individual’s ability to function successfully in society.  If those people score higher than 70 on an IQ test, they are routinely denied services.

In addition to changing that standard, the new law establishes a permanent new autism commission and authorizes the establishment of tax-free, individual savings accounts to pay for a variety of DDS and other services.

We have written before about the lack of services available to people with autism, Prader-Willi Syndrome, and other developmental disabilities.   It’s unclear, however, how many additional people will be helped by the new law and how many will be left out, in part because of the way the law was drafted, and in part because  it is unclear how many people with developmental disabilities currently go without services in Massachusetts.  The administration does not maintain a publicly disclosed waiting list for services.

We are glad to see that the Legislature has recognized that having an intellectual disability is not necessary to establish that an individual has severe functional limitations and needs DDS services.   The Disability Law Center (the DLC), a federally funded legal advocacy organization in Massachusetts, maintains that Massachusetts is the only state in the nation that has had such a narrow standard for eligibility for services.

But in specifying three additional conditions that make individuals eligible for DDS services, the new law necessarily leaves out other conditions that can and often do result in many of the same types of functional limitations, such as Williams Syndrome, spina bifida, and cerebral palsy.  We raised concerns about that aspect of the legislation earlier this year, noting that the selection of the specific conditions listed in the legislation was not subject to a public hearing before the Children, Families and Persons with Disabilities Committee, but was the result of closed-door negotiations.

A post currently on the The Massachusetts Association of Developmental Disabilities Providers (ADDP) website  homepage states that the ADDP’s affiliated organization, the Arc of Massachusetts, played a key role in those final negotiations over the DDS eligibility law and the two other new laws as well — the national background check and Real Lives laws.

COFAR and the DLC supported a previous definition of developmental disability in the DDS eligibility legislation, which did not specify a limited number of conditions, such as autism or Prader-Willi Syndrome.  The previous definition stated only that a developmental disability involves “substantial functional limitations” in three or more “major life activities,” which include such things as self-care, “receptive and expressive language,” learning, mobility, the capacity for independent living, and economic self-sufficiency.

We have noted that specifying certain conditions as eligible for state services and leaving out others may violate both the federal Rehabilitation Act and the Massachusetts Constitution, both of which prohibit discrimination solely on the basis of disability.  Withholding support for this restricted definition, in addition to COFAR, is the DLC.   As one advocate noted, the addition of three specified conditions for DDS eligibility to the existing requirement of intellectual disability “does very little to move us out of the bottom tier of all states” in the narrowness of the state’s eligibility criteria for services.

The lack of a state-care option

Another potential problem with the new law has to do with the makeup of the permanent autism commission.  The commission specified in the law will consist of 35 members, including legislators, administration officials, the Arc of Massachusetts, and advocates from autism advocacy organizations.   There are no seats on the commission for any advocates of state-run care for the developmentally disabled.

We think this is an unfortunate oversight in the makeup of the commission because we believe that state-run group homes and other facilities will be needed to accommodate the influx of new people who will become eligible for care under the new law.  As we have pointed out, the administration has been underfunding and even dismantling state-run care options for people with intellectual disabilities, and designating provider-run settings as their only option in most cases.

With potentially thousands of people added to the DDS eligibility lists as a result of the new law, a large percentage of that population will still not be able to get residential care or services due to a lack of DDS resources for community-based care.  If DDS continues to close state-operated group homes as it has been doing, this is only going to continue to make the situation worse.

State-run residential care is provided in Massachusetts by staff with better pay and training than is usually available in provider-run facilities.  As a result, we think an advocate of state-run facilities on the autism commission would introduce a needed point of view in the commission’s deliberations.

We did support the addition to the autism commission of a member with clinical knowledge of Smith-Magenis Syndrome.  Amendments to the legislation, which added that member to the commission and added Smith-Magenis Syndrome (SMS) to the conditions listed in the law, were filed on behalf of the Duzan family, whose daughter, Sara, has SMS. The amendments were adopted.

As we have reported, Sara Duzan has been subjected for many years to poor conditions and treatment in provider-run residential facilities, according to her family.  Part of the problem in her care has been that few providers are knowledgeable about SMS, which is often characterized by behavioral outbursts.  As a result of that lack of knowledge, Sara has often been subjected in residential facilities to the inappropriate use of restraints.  In addition, members of the Duzan family themselves have often been inappropriately and unfairly blamed by providers, probate court judges, and even clinicians and state administrators, in our view, for causing Sara’s outbursts.

Other issues

Another area of uncertainty in the new DDS eligibility law concerns its authorization of so-called ABLE accounts, which allow families of developmentally disabled people to establish tax-free savings accounts for expenses including education, housing, and supports and services.  It is unclear what relationship these accounts might have to “individual budgets” established under the newly signed Real Lives law.  We have expressed concern that those individual budgets do not appear to fall under the control of guardians of disabled clients.

Like the Real Lives law, which provides for the involvement of private financial managers in administering clients’ individual budgets, the new DDS eligibility law provides for the authorization of private entities to manage individual ABLE accounts.

As is the case with the national background check and Real Lives laws, we hope that the Legislature addresses the problems we have identified in the DDS eligibility law in its upcoming session.

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New DDS background check law has delayed requirements

August 14, 2014 Leave a comment

A new national criminal background check law in Massachusetts  may well have a major, positive impact on services and care for people with developmental disabilities in the state.

But under the law, the background check requirement is delayed for many, if not most, current employees in the Department of Developmental Services system for more than four years, until January 2019.  The requirement is delayed for a year and a half for prospective employees in the system.

The long-awaited law, which was signed by Governor Patrick last week, authorizes national criminal background checks for persons hired to work in an unsupervised capacity with persons with developmental disabilities.  The law will ultimately require that both current and prospective caregivers in the system submit their fingerprints to a federal database maintained by the FBI.  The law applies to DDS employees, employees of corporate service providers to the department, and caregivers over the age of 15 of persons living at home.

Up to now, persons hired to care for clients in the DDS system have had to submit only to an in-state criminal background check, which identifies only criminal arrests and convictions in Massachusetts, and does not identify any convictions a job applicant might have from another state.  A national background check system will fill in that potential gap in the applicant’s history.

The new law’s fingerprint requirements, however, will be phased in through January 2019 for current employees, and will not take effect for new employees until January 2016.  Another provision in the new law that raises questions appears to allow employees to be hired before the results of their background checks are obtained.  That provision states the following:

Department-licensed, funded or approved programs and providers of transportation services on behalf of any department-licensed, funded or approved program may hire individuals without first obtaining the results of a state and national fingerprint-based criminal history check (my emphasis).

It’s not entirely clear to us what the intent of this provision is or what its impact might be.  It appears to allow people to be hired before they are cleared through the FBI database. The provision does not specify a time frame for obtaining the background check results after an individual is hired.

Does this provision mean that even after January 2019, someone could be hired by DDS or a provider and could work for weeks or possibly months with developmentally disabled people before their background results are obtained or before their backgrounds are even checked? Furthermore, does the provision allow for that leeway even for in-state background checks?

I contacted the staff of the Legislature’s Judiciary Committee earlier this week to ask about that provision and the provisions phasing in the background check requirements until 2016 and 2019.  It was apparently in the Judiciary Committee that these provisions were inserted. Interestingly, the Judiciary Committee staff person I talked to referred me to Philip Johnston Associates, a Beacon Hill lobbying firm, which was apparently involved in the final negotiations over the bill, apparently on behalf of DDS corporate providers.

On Tuesday, I spoke to a member of the Johnston Associates firm, who said she was unsure as well about the intent of the provision that appears to allow the hiring of individuals prior to checking their backgrounds, and that she would get back to me.  I have not yet heard back from her.  I also placed two calls on Monday and Tuesday to the state Department of Criminal Justice Information Services, which is in charge of administering the law.  I have yet to get a return call from that department.

The Johnston Associates staff member said the providers and other advocates involved in negotiations over the background check legislation pushed for phasing in the fingerprint requirements due to concerns over the time needed to implement them.  A member of the Association of Developmental Disabilities Providers expressed a concern in a news article last week that the new fingerprint requirements could prove burdensome to smaller provider agencies.

It is not clear to us though that more than four years is really needed to phase in the national background check program for current employees in the DDS system, or that a year-and-a-half delay is needed before requiring new employees to be fingerprinted.  We’re skeptical that that much time is needed, partly because we’ve witnessed a lack of urgency on the part of both the Legislature and the administration for the past several years in just getting this law passed.  It seems possible that that lack of urgency is being carried over into implementing the law’s requirements.

National background check legislation had been proposed each year for up to a decade by then Representative Martin Walsh, now mayor of Boston, before it was finally enacted this year.  Each year, the legislation would get stuck in either the Judiciary or House Ways and Means Committees, or both, and then would die at the end of the session.  The administration did little during that time to lobby for passage of the measure.  As a result, Massachusetts has been only one of a handful of states without a national background check program for people with developmental disabilities.

Meanwhile, the federal government has stood ready to assist the state with grant money under the Affordable Care Act to help implement the new background check law; but Massachusetts has declined to apply for that federal money, which has available since 2010. The state has even been slow to implement national background checks for school teachers and children’s day care providers.

While we’re glad to see that the DDS national background check bill is finally law, we hope the administration now shows a true commitment and sense of urgency in getting it to work.

‘Real Lives’ bill is now law, but it raises many questions

August 7, 2014 Leave a comment

The ‘Real Lives’ bill is now law, and it is somewhat better than the vehicle it was in danger of becoming for the financial benefit of corporate providers to the Department of Developmental Services.

But what has come out of the legislative process late last month is a compromise between two competing bill drafts, even the better of which raised some serious questions.   The final compromise was apparently negotiated among key lawmakers in the House and Senate, with the input of a major provider-based organization, the Arc of Massachusetts.

The legislation introduces what is called “person-centered planning” in providing care and services to persons with intellectual and developmental disabilities.  It is touted as providing individuals with more choice and “self determination” in the services they receive from the Department of Developmental Services.

One of the main thrusts of the new law is to provide developmentally disabled persons with control over their own “individual budgets” to pay for DDS services.  The introduction of individual budgets is billed as a key departure from the current system in which DDS controls the budget process in contracting with corporate providers to operate group homes and provide other services.

But we think the development of these individual budgets is actually where this legislation runs into problems.  Many, if not most, developmentally disabled people are not in a position to manage complex budgets involving state and sometimes federal funds or to make informed decisions about their own needs and services.  As a result, the law provides that they can engage a “chosen planning team,” “financial management services,” and “independent facilitators” to help them do those things. These entities, some of which will be privately operated, yet state-funded, will work with each individual’s clinical care team to make those planning and financial decisions.

There are two major drawbacks to this approach.  One is that the independent facilitators and financial managers will constitute a new layer of bureaucracy, which will mean higher costs to taxpayers as well as a managerial nightmare for DDS.

Who will actually determine, for instance, what a program participant’s individual budget actually is?   The law states that DDS “shall negotiate with the financial management service provider uniform rates for each given unit of service, to be paid by each participant from the participant’s individual budget” (my emphasis).

Does this mean DDS is required to enter into negotiations with an undetermined number of private financial management services on behalf of thousands of individual clients?

Related to this is the question whether DDS actually knows what an individual’s total cost of care is, and whether the Department currently calculates that total cost.  In the community-based system, these costs are spread over a number of budgets, including the DDS and MassHealth budgets.  The Department’s contracts with group homes are based on only a portion of these costs, which are not necessarily specific to the individual residents.

In that respect, we think the Real Lives legislation would make more sense if it involved giving an individual and his or her guardian more authority simply to plan their services, and stopped there.  There is no good reason that we can see to also give a program participant authority to manage and disburse state and federal money.  That should remain a DDS function.  Giving a developmentally disabled individual control over the disbursement of such funding could potentially open them up to financial exploitation.  But the new law appears to give those disabled individuals that authority with the following language:

“…with self-determination,  the participant has control over the annual budget, the participant is central to and directs the decision-making process and determines what supports are utilized and the service system is flexible, so the participant may tailor the participant’s supports to meet the participant’s needs…” (my emphasis).

The second major drawback in the Real Lives approach is related to the first.   The law appears to leave the individual’s guardian almost out of the picture.  The “participant” in the program is defined in the legislation as “an individual with disabilities receiving department services and, when appropriate, an individual’s parents, legal guardian, conservator or other authorized representative…” (my emphasis).

As we asked Senator Michael Barrett’s staff, when we were sent his version of the then bill for comments last January, who will determine when it is appropriate to allow an individual’s guardian or family to participate in their ward’s person-centered planning and self-determination program?  We noted that the vague language in the bill could leave incapacitated individuals even more vulnerable to financial exploitation by persons other than their guardians or family members who seek to make decisions about their care or financial affairs.

We recommended that a statement be added in the bill making it explicit that in a case in which an individual has a legal guardian, the guardian would be considered the participant in the self-determination program.  While Barrett’s office did produce a thoughtful redraft of the very flawed original version of the bill, our suggested language ensuring participation of guardians was not inserted.

The law does potentially give the guardian a consulting role in the development of his or her ward’s individual budget, but that role appears to be an indirect one that is based on a reference to the individual’s care plan or Individual Support Plan (ISP).  In contrast is the much more central decision-making role that is given to the developmentally disabled individual himself or herself.

So, the upshot seems to be that while the law gives a central decision-making role to the disabled individual and possibly his or her financial management service, the individual’s guardian will have direct input only in cases in which someone, who is not specified, determines it is appropriate for the guardian to be involved.  Otherwise, the guardian has, at most, a consulting role to DDS.  This is very troubling to us.

Also, we had suggested that a statement be added to the definition of “self-determination” that participants and their guardians would be given an explicit choice among all available options for care, including state-operated facilities and group homes, provider-operated homes, shared living arrangements, and home-based care.  That statement was never added either.

As we have pointed out in a number of posts, both state and federal law provide that developmentally disabled persons seeking services are entitled to a choice of all available types of care, including state-run and institutional care.  But DDS routinely denies this choice to applicants for services, and presents provider-operated residential care as their only option.

Another serious problem with the Real Lives law is that the final compromise removed language from Barrett’s version which would have helped ensure that an advisory board created under the legislation is not dominated by corporate providers.  We are glad to see, though, that an unwarranted “contingency fund” for the providers was taken out of the bill.

In the final analysis, we think clients, their guardians, and families should have choice over the services they receive, but they should not have to manage state-funded budgets to pay for them.  State and local governments fund public school systems in the state, for instance. People have the choice of traditional public or charter schools, but families are not provided with pots of state and local funds from which they then pay the schools via private financial managers.

Service choice is already available to developmentally disabled persons through the ISP process, but it is less robust than it could be.  As noted, there is no real opportunity provided to most developmentally disabled people under the current system or under the Real Lives legislation to choose the state-run care option.  At the very least, the Real Lives law should be amended to correct that situation and to make the guardian’s role explicit in person-centered planning.

We hope these changes are made to the new law in the next legislative session.