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HHS IG’s Office defends 6-page report on abuse and neglect of disabled in NY State

February 24, 2016 1 comment

The Inspector General’s Office for the U.S. Department of Health and Human Services has responded to our questions about the methodology underlying their report on abuse and neglect in residential facilities for the developmentally disabled in New York State.

As a spokesperson for the Office put it, in an email accompanying the Office’s responses, “I think you will see we were quite thorough in our work.”

I’ll summarize the Office’s responses below.  But we have to disagree with the suggestion that this report was thorough.  A six-page report (actually four pages if you leave out the methodology section) that contains no recommendations concerning a subject as serious and complex as abuse and neglect in a system with thousands of residential facilities and tens of thousands of program recipients cannot by definition be thorough.

As we noted previously, Senator Chris Murphy of Connecticut had asked HHS Inspector General Daniel Levinson in 2013 to investigate the privatized group home system around the country in the wake of exposes in both The Hartford Courant and The New York Times that revealed horrendous cases of abuse and neglect in group homes in their respective states.

Group home photo

A group home in Hudson Falls, NY, where a worker allegedly sexually assaulted a developmentally disabled woman, according to a New York Times report

The report released by the IG on New York State’s residential system is the first of three reports that the Office plans to issue in response to Murphy’s request.  Two additional reports are expected to be released, based on similar reviews in Massachusetts and Connecticut.

What the IG actually did in the first report was to conduct a review of the outcomes of hospital emergency room visits by residents of a selected sample of 12 Intermediate Care Facilities (ICFs) in New York State.  Those 12 ICFs were selected because more than 70 percent of the residents in each of the facilities had had an ER visit in 2012 and 2013.

While some of the ER visits were due to alleged abuse and neglect, the IG concluded that the incidents were reported to the appropriate agencies, and that the “vast majority” of the ER visits were due to underlying medical conditions of the residents.  The report noted that it contained no recommendations, and essentially concluded that the IG had found nothing wrong in the system.

Senator Murphy has not responded to queries from us as to whether he is satisfied with the IG’s work so far in response to his call for the investigation.

Below are the key questions we posed to the IG about the New York report and a summarization of the IG’s responses (not necessarily in the order we posed the questions):

1. What about deaths?

As we previously stated, the IG’s review appears to have been limited to outcomes of persons sent to ERs from a sample of ICFs. Sen. Murphy’s letter to the IG in 2013 specifically requested that Levinson investigate preventable deaths in group homes. In limiting his review to persons taken to ER’s, didn’t Levinson’s study miss deaths in which no one was taken to an ER?

The IG’s response stated that they reviewed all reported deaths involving the 109 residents of the facilities examined during the audit period.  There were a total of 12 reported deaths among the residents in seven of the 12 ICFs.  All 12 reported deaths were from natural causes, the IG stated.

This response demonstrates to us just how limited the selected sample of facilities was that the IG chose to review.  The New York Times reported in 2011 that 1,200 deaths in group homes in the past decade “have been attributed to either unnatural or unknown causes.”

In 2013, The Courant reported “dozens of developmentally disabled people who died in public and private group homes, institutions and nursing homes from 2004 through 2010 in cases where investigators cited abuse, neglect or medical error as a factor.”

2. Why was the IG review limited to ICFs, when, in fact, many group homes in New York State are not ICFs?

As we noted, ICFs are a distinct category of residential facility for the developmentally disabled. They are required to meet strict federal standards for care under the federal Medicaid statute, and tend to serve profoundly disabled and medically involved people.

Also, it’s not clear how many, if any, of the ICFs examined by the IG actually were group homes. Many group homes operate under the Home and Community Based Settings (HCBS) waiver to the federal Medicaid statute, which exempts those homes from ICF requirements.

In their response, the IG’s Office stated that they first used a state computer database to identify Medicaid claims submitted by more than 1,100 residential providers for close to 41,000 intellectually disabled Medicaid beneficiaries in New York State.

The IG then determined that close to 23,000 of those beneficiaries had some 146,000 ER visits charged to Medicaid totaling $1.6 million.

The IG next determined that those beneficiaries resided in 33 state-operated and 395 privately operated ICFs.  Of that total of 428 ICFs, the IG selected 12 for which more than 70 percent of the residents had had an ER visit.  The review involved 109 residents of those 12 ICFs.

But it still isn’t clear to us how many, if any, of the facilities reviewed were actual group homes, which tend to have 6 residents or fewer in them, or why the IG appears to have limited their review to ICFs.

In their response, the IG stated that four of the 12 ICFs in their sample were actually “HCBS Waiver ICFs.”   I sent the IG’s Office a follow-up email to try to clarify this.  As I noted, it is our understanding that a group home or other facility that operates under the HCBS waiver is not considered an ICF, but is an “alternative” to an ICF.   I haven’t yet received a response to that request for a clarification.

The IG’s Office also hasn’t responded to a second follow-up question as to how many, if any, of the 12 ICFs reviewed were actual group homes.  Senator Murphy had asked for an investigation of group homes.

3. Could there be an overlooked variable biasing the results as a result of the IG’s methodology?  For instance, might a group of ICFs have a high percentage of patients admitted to ERs because those are the ICFs with the most medically fragile patients?

The IG’s response to this was that “the entire population in ICF’s is a fragile population,” and that “no bias was involved” in their method of selecting the 12 ICFs for review.

But this answer doesn’t respond to the question, which assumes that there are some differences in the average degree of medical fragility of residents in different ICFs.  Our guess is the IG’s sample is likely to have consisted of the ICFs housing the sickest residents on average. Those residents would be the most likely to die of “natural causes” rather than abuse or neglect.  So that might provide one reason why the IG did not find evidence of abuse or neglect in the deaths of the residents in those facilities.

3. Why did the IG look at data for only two years — 2012 and 2013?  Shouldn’t the IG have examined data over at least a 10-year period?

The IG’s response was that the process of identifying the Medicaid claims for 41,000 beneficiaries over two years took “a great deal of time and manpower,” and that the Office didn’t have the time or resources to do more.

5. Did the investigators interview staff, families etc. in any of the facilities?

The IG responded that all 12 ICFs were visited and that staff and beneficiary records were reviewed.  Apparently no staff or family members were interviewed.

In critiquing this report, we’re not trying to criticize the IG’s other investigations or audits of the health and human services system.  We think the IG took the wrong approach to this particular investigation.  It was an approach that took them nowhere, and the report reflects that.  To that extent, it was a huge missed opportunity.  As we noted in our last post, federal investigations of the privatized group home system have been few and far between.

Rather than using a questionable methodology to try to come up with their own data on abuse and neglect, the IG could have reviewed existing records on abuse and neglect that are available in state agencies in New York State.  At the very least, the IG could have tried to confirm the findings of the Times and the Courant.  Better yet, they could have looked at what actions have been taken in each state to address the newspapers’ findings, and whether those actions have resulted in any improvements that might have been reflected in the state agency data.

It probably goes without saying that the IG should have interviewed families of residents of the facilities they examined.

Despite any implications that might be drawn from the IG’s New York report, we’re sure the problem of abuse and neglect in the group home system has not gone away.  A systematic federal investigation of this problem is still sorely needed.

 

Is Senator Chris Murphy really just fine with this IG’s report on abuse of the disabled?

February 23, 2016 2 comments

It’s hard to believe the Inspector General for the U.S. Department of Health and Human Services has come up with a report about abuse and neglect of the developmentally disabled in New York State that doesn’t have any recommendations in it.

And it’s hard to believe that U.S. Senator Chris Murphy of Connecticut, who had asked for the IG investigation, is okay with this report.  Well, we don’t really know how he feels about it.  We have been unable so far to elicit a comment from his office about it.

The IG took two and a half years to do this report, which was released last September (although we have only now seen it), and the results seem cursory to say the least.  Moreover, the methodology the IG used in the 6-page report (that page count includes an appendix on that methodology) seems questionable.

Based on that methodology, the IG essentially found no problems in New York’s group home system.  Well, it’s not clear exactly what types of residential facilities were actually examined. More about that and the IG’s methodology below.

We understand that the IG has not yet released additional reports done on Connecticut and Massachusetts, also in response to Murphy’s request.  But if those latter reports have employed the same methodology and lack of apparent rigor as the report on New York, we would expect to see similar non-findings and non-recommendations in them.

In March 2013, Sen. Murphy had asked the IG to investigate the privatized group home industry around the country in the wake of major newspaper exposes in both his state of Connecticut and in New York State about poor care and worse in those facilities.

Both The Hartford Courant in Connecticut and The New York Times had found numerous instances of horrendous abuse and neglect (here and here) in the group home systems in those states that resulted in many cases in deaths of disabled people and serious injuries.  In case after case, vulnerable and disabled people were found to have been subjected to sexual and other types of assaults, inadequate care, and substandard conditions in facilities with underpaid and poorly trained staff.

As the Times noted in one of its articles, while the staff of these group homes may have been poorly compensated, the executives of the state-funded companies running the homes were often generously paid.

While the privatized group home industry sprang up in response to reports of abuse and neglect in large institutions in the 1970s, the Courant and Times articles, and many similar media exposes in other states, have more recently raised the question whether group homes have become the new warehouses for developmentally disabled people.

To give Murphy credit, he was one of the few prominent elected officials to express public concern about the group home industry in the wake of the Courant and Times exposes.  In 2013, shortly after he was elected a senator in Connecticut, he seemed to be outraged by the Courant’s findings, in particular.  He wrote a strong letter to Daniel Levinson, the HHS IG. Murphy’s letter opened by stating:

I write to you today to request that you undertake an immediate investigation into the alarming number of deaths and cases of abuse of developmentally disabled individuals in group homes. In particular, I would like you to focus on the prevalence of preventable deaths at privately run group homes across this nation and the widespread privatization of our delivery system.

Citing accounts of abuse and neglect in Connecticut, New York, Massachusetts, Virginia, Louisiana, and Texas, Murphy’s letter added:

These examples and countless others from across the nation are indicative of a larger problem of the race to he bottom in our health care system. Privatization of care may mean lower costs but without the proper oversight and requirements for well-trained staff.

Murphy’s letter to Levinson noted that prior to his becoming a U.S. senator, he had led the charge in the Connecticut Legislature in 2005 to enact a moratorium on conversations of state-run group homes into privately run residences, which are nevertheless publicly funded.

Since 2013, however, Murphy seems to have gone silent on this issue.  His office has never responded to queries from us in the past two years about his call for the IG investigation, and we’ve received no response to a call to Murphy’s office last week and to an email this week, asking if Murphy is satisfied with the IG’s work so far.

Our questions and concerns about the IG’s report primarily have to do with the IG’s apparent decision to conduct a much more limited review than what Senator Murphy had asked for. Coupled with the sharply limited nature of the review is what appears to be a vagueness about what was examined. The report doesn’t appear to fully specify, for instance, which types of residential facilities were included in the review.

The report says that the review was limited to Intermediate Care Facilities (ICFs) in New York State in which at least 70 percent of their intellectually disabled Medicaid beneficiaries had an ER visit from 2012 through 2013.  This resulted in a review of cases involving 109 persons at 12 ICFs.

ICFs are a distinct category of residential facility for the developmentally disabled.  They are required to meet strict federal standards for care under the federal Medicaid statute, and tend to serve profoundly disabled and medically involved people.

The IG’s report stated that New York State has both state-run and privately run ICFs, and that the privately run facilities have less than 30 beds.  All that is stated in the report is that the sample of ICFs selected by the IG included two state-run ICFs and 10 privately run ICFs. The report, however, doesn’t say whether any of the ICFs were actual group homes, which tend to have far fewer than 30 beds.

Here is the single finding or conclusion of the IG’s report:

ICFs in New York with high rates of ER visits by intellectually disabled Medicaid beneficiaries under their care reported … these visits, as required, and potential neglect or abuse was reported and investigated (by the appropriate state agencies). However, the vast majority of ER visits we reviewed resulted from circumstances associated with the Medicaid beneficiaries’ underlying medical conditions—not from neglect or abuse. Accordingly, this report contains no recommendations…

In written comments on our draft report, the health department stated that it was pleased that we had no recommendations.

While it’s not surprising the health department is pleased by the lack of recommendations in the report, we would think that, at the very least, taxpayers, who paid for this two-and-a-half-year investigation would have preferred the investigation to have resulted in recommendations.  But more importantly, how is it possible that an investigation of a topic of this magnitude and complexity could essentially find nothing wrong?  Particularly, when we know there is a lot wrong with the system.

Here are some of the questions we’ve posed to the IG regarding the methodology used in the report: (We’re still waiting for their reply.)

1. Why was the IG review limited to ICFs, when, in fact, many group homes in New York State are not ICFs?

As noted above, it’s not clear how many, if any, of the ICFs examined by the IG actually were group homes.  Moreover, the report doesn’t appear to mention the Home and Community Based Settings (HCBS) waiver to the Medicaid statute under which most group homes operate.  The waiver exempts those homes from ICF requirements.

New York State does appear to have privately run group homes that operate under the HCBS waiver. Were group homes, which do not operate under ICF rules, included in the review?  If not, why not?

2. Could there be an overlooked variable biasing the results as a result of the IG’s methodology?  For instance, might a group of ICFs have a high percentage of patients admitted to ERs because those are the ICFs with the most medically fragile patients?

3. Why did the IG look at data for only two years — 2012 and 2013?  Shouldn’t the IG have examined data over at least a 10-year period?

4. What about deaths? The review appears to have been limited to outcomes of persons sent to ERs from a sample of ICFs.

Sen. Murphy’s letter to the IG in 2013 specifically requested that Levinson investigate preventable deaths in group homes. In limiting his review to persons taken to ER’s, didn’t Levinson’s study miss deaths in which no one was taken to an ER?

5. Did the investigators interview staff, families etc. in any of the facilities?

One of the reasons we’re so disappointed in the IG’s New York report is that it appeared to be one of the few instances in which the federal government had undertaken an investigation of privatized healthcare.  In recent years, state-run care has been a persistent focus of federal investigations, while privatized care appears to have gotten a free pass.  Between 2009 and last year, the U.S. Justice Department had filed more than 45 legal enforcement actions in 25 states to limit or shut down state care.

The reason for that apparent bias against state-run care appears to be, in part, an ideology held by the the current and previous administrations against institutional or congregate care, which is primarily state-run.  That ideology has become so fervent, in fact, that only the smallest group-home settings are considered acceptable by federal organizations such as the National Council on Disability.

But there has been a persistent drumbeat of information about poor care in these smaller, privatized settings, and a lack of oversight of them.  But all the HHS IG has produced so far in response to this drumbeat is a six-page report that has no recommendations.  We have to hope Senator Murphy isn’t satisfied with that.

Gov. Baker’s FY ’17 budget continues race to the bottom in care of the developmentally disabled

February 2, 2016 8 comments

In his proposed Fiscal 2017 budget, which he filed last week, Governor Baker is continuing to boost funding for privatized care for the developmentally disabled at the expense of state-run care.

This continues a pattern that has crossed party lines — the Patrick administration did the same thing — of reducing both the available choices and the quality of care for people with developmental disabilities.

Privatization of human services reduces the quality of care because it reduces money spent on direct-care staffing.  Direct care workers of corporate providers get lower pay and less benefits than their counterparts in state-run facilities.

Privatization reduces choice in care because it results in the closures of state-run facilities and consequently eliminates them as an option for people who might want that higher level of staffing and care.

Of course, as the linked New York Times article points out, privatizing services doesn’t necessarily result in long-term fiscal savings for state taxpayers.  The money saved in hiring lower-paid workers is usually offset by higher costs such as unemployment insurance and by Medicaid and other public assistance for workers earning low incomes.  We also believe any savings in privatization is also offset by the often inordinately high compensation provided to executives of the corporate providers.

Yet it appears the Baker administration still believes it will save money in using lower-paid direct-care workers.  That seems to be the case with the administration’s proposal to privatize mental health services in southeastern Massachusetts.  In that case, the administration appears to be implicitly backing a reduction in wages to direct-care workers after an initial contract period.

Governor’s FY ’17 DDS budget numbers

Here are some of the key numbers in Baker’s Fiscal 2017 budget proposal for the Department of Developmental Services.  Note: All numbers below are adjusted for inflation using the Mass. Budget and Policy Center’s CPI index numbers.  The CPI numbers show inflation running at about 1.8 percent for Fiscal 2016.

We believe that in order to gauge the level of the administration’s commitment to privatization of services for the developmentally disabled, it’s necessary to compare what has happened and is happening to the corporate provider line item with what happens to other DDS line items.

Here’s how it looks graphically, with more detailed explanation below.

DDS budget chart FY 17

Corporate provider residential line item (5920-2000): This is the main DDS line item supporting privatized services.  It has become by far the largest line item in the DDS budget — funding under this line item exceeded $1 billion for the first time in Fiscal 2015.

The governor’s Fiscal 2017 budget would increase the corporate provider line item by $5.9 million, or 0.5 percent, over current-year funding.  If the governor’s Fiscal 2017 budget is adopted, this line item will have been increased by $309 million, or 38.6 percent, since Fiscal 2012.

Chapter 257 Reserve 1599-6903: This is a reserve fund created to last year to provide even more funding for corporate providers.   The governor’s budget would increase this fund by $5.7 million or 18.6 percent, to $36.2 million.

The following three line items are key indicators of the administration’s commitment to state-run services.

State-run developmental centers budget line item (5930-1000):  The governor’s Fiscal 2017 budget would cut this line item by $3.18 million or 2.8 percent from the current-year appropriation.  If the governor’s proposal for Fiscal 2017 is adopted, this line item will have been cut by $41.6 million, or 27.5 percent, since Fiscal 2012.

That $41.6 million cut reflects the closures since 2008 of three of six remaining developmental centers.

State-operated Residential line item (5920-2010): The governor’s Fiscal 2017 budget would cut this line item by $212,800, or 0.1 percent, from current-year funding.  (In nominal dollars, the governor has proposed a $3.7 million increase in this line item, but it’s a cut when adjusted for inflation.)  If the governor’s Fiscal 2017 budget is adopted, this line item will have been increased by $42.8 million, or 24.4 percent, since Fiscal 2012.

That 24.4 percent increase since Fiscal 2012 for state-operated residential care can be compared to the 38.6 percent increase in the corporate provider residential line item. Moreover, that funding increase in the state-operated residential line item is actually a result of the underlying dynamic of privatization.

As we have noted before, there has been a net increase of 40 state-run group homes over the total number in 2008; but the state has closed state-run residences even as it has built new ones.  It appears the new state-run residences and the additional funding for those residences have been intended to accommodate the more than 250 people who have been transferred since 2008 from the closed developmental centers and the closed state-run homes.  Those are apparently the only people who have been admitted to the new state-operated homes.

As we’ve also pointed out, the administration does not even offer state-run residential facilities as options for developmentally disabled people waiting for residential care.  Privatized, corporate-run care has become the only “choice” available those people despite the fact that the federal Medicaid Law requires that developmentally disabled individuals and their guardians be informed of the available “feasible alternatives”  for care.

DDS administration (5911-1003): In addition to administrative functions, this line item funds DDS service coordinators, who are responsible for ensuring that clients throughout the system are receiving services to which they are entitled.  The service coordinators have seen their caseloads rise dramatically in recent years, but funding under this line item has never kept up with the caseload increases.

The governor’s Fiscal 2017 budget would cut the DDS administrative line item by $977,000, or 1.4 percent.  (In nominal dollars, the governor is proposing a slight increase in this line item, but it’s a cut when adjusted for inflation.)  Since Fiscal 2012, this line item will have been increased by 8.1 percent if the governor’s Fiscal 2017 budget is approved.

Other line items that demonstrate the administration’s commitment to increased DDS privatization include the following:

Community day and work 5920-2025: The governor’s budget would increase this line item by $5.6 million or 3 percent.  Since Fiscal 2012, this line item will have been increased by 45 percent if the governor’s Fiscal 2017 budget is approved. It appears that some of the increase proposed for this line item reflects the transfers of people from sheltered workshops to day programs.

Employment pilot program 5920-2026: The governor’s Fiscal 2017 budget would increase this line item by $4.6 million, which is a major increase, given that the current year appropriation is just over $3 million. That proposed 150 percent increase reflects the transition from sheltered workshops to supposed integrated employment.

The pattern of privatization in Massachusetts state government has become almost permanently established even though the benefits of privatization are highly debatable.  Many questions have been raised about the privatization of prisons  and the privatization of education in Massachusetts and elsewhere around the country.  The privatization of human services may be the biggest prize of all for government-funded contractors.  We need to preserve what’s left of state-run services.