Blog Archives

THE STATE'S PREDATORY FINANCIAL EXPLOITATION OF MEDICAID COMMUNITY TRANSITION WORKERS

7/29/2018

-----MANY OF WHOM ARE PEOPLE WITH DISABILITIES, NEEDS TO STOP

IF THERE IS A CMS ISSUE WE NEED TO FIND A WAY AROUND IT. THIS IS WRONG IN A BIG, BIG WAY

First, we don't think State officials got up one morning and said, "How can we financially exploit Community Transition workers."

But the reality is the reimbursement for this program has never been viable -- and that has been for several years now.

AND as corroborating evidence --- most non-profits won't do it because of the inadequate reimbursement.

But the reimbursement is really beyond inadequate --- it's a contingency fee arrangement per person that is transitioned from the nursing home.

8.553.8.C. The cost of Transitional Case Management shall be reimbursed by one unit of service completed when the client is established in a community-based residence as verified by the SEP case manager.

Further, some transition workers are reporting that they have not been paid for work that was completed in 2016.

Whatever the backstory is on the 2016 matter, the reality is we have been hearing complaints for years about the reimbusement.

Further, transition workers say they have been complaining to the Colorado Department of Health Care Policy & Financing for all those years.

Transition workers advise that HCPF tells them CMS is forcing their hand on this horrible reimbursement scheme.

Well, Hmmm . . . .

It seems to us that there are a lot of ways around this reimbursement scheme if the department is so inclined.

Now, we have even some of the diehard Independent Living Centers refusing to do Community Transition work -- such as Boulder's Center for People with Disabilities & Executive Director David Bolin and their board ----because they can't afford it.

It would be really great if HCPF could work with the current Transition Agencies as well as other non-profits who would like to do transition work under a reasonable reimbursement scheme.

Reforming an Incoherent CO Medicaid Program

7/22/2018

Inpatient
[Mandatory Medicaid Service -- Colorado doesn't have enough beds]

Residential Services
[Alternative Medicaid Service in Colorado -- NOT available to all where reasonably medically necessary -- artificially capped]

Assertive Community Treatment
[Alternative Medicaid Service in Colorado -- NOT available to all Medicaid recipients where reasonably medically necessary---artificially capped.]

Intensive Case Management
[Alternative Medicaid Service in Colorado -- NOT available to all Medicaid recipients where reasonably medically necessary--artificially capped.]

CO's CMHS Waiver
Colorado's Community Mental Health Supports waiver requires that people with mental illness need assistance with an activity of daily living.

CO's CMHS Waiver Needs To Be Changed

Colorado doesn't have a coherent Medicaid program for people with intensive mental health needs.

Whenever we're tempted to blame state administrators, it often occurs to us that there may not be enough state employees @ the Colorado Department of Health Care Policy & Financing to really address these issues.

One of the things that the Governor's Community Living Group is looking @ is recommending a Designated Person to serve as an Olmstead Coordinator among state agencies.

There is so much work to be done just in Colorado Medicaid Mental Health Program Design/Re-Design -- especially at the intensive end of the spectrum -- that is likely not going to be easily accomplished without additional staff.

Two of the things that we really need are:

Tools to assess graduated levels of care & service needs -- especially intensive mental health care needs. We don't have enough intensive mental care services AND they tend to be expensive -- IF YOU THINK THERE IS A CONNECTION, YOU'D BE RIGHT;

Minnesota does have a statute setting out criteria for Assertive Community Treatment (ACT). Minnesota does NOT fund ACT as an alternative Medicaid service -- but as a standard rehabilitative service under Medicaid.

AND

A Study of the need for various forms of intensive mental health care with special attention to neglected populations such as people with mental illness who are homeless or incarcerated.

A lot of good things have been done to address Colorado's mental health crisis.

But we still have a lot of heavy-lifting to do.

Federal Law & "Subject to available resources" under CO's Care & Treatment of Persons with Mental Illness Act

7/19/2018

There seems to be widespread understanding across the political spectrum that we do not have adequate bed space or intensive/long term Medicaid mental health resources in the Community.

I was watching NEXT on Channel 9 with Kyle Clark and he played a piece with Arapaho District Attorney and Attorney General Candidate George Brauchler in which Brauchler said among other things --- there aren't the mental health resources for certification -- and everybody knows it.

Well, that seems to be a pretty accurate statement.

See "Gravely Disabled"

Which isn't to say we don't have any beds, intensive and long term Medicaid mental health resources, we just have 1000s more people who need them -- than we can provide for.

Colorado's Civil Commitment Statute purports to limit the State's Liability to "available resources."

The legislature amended the statute in the 1990's after the Goebel case to limit Colorado's Care & Treatment Act for Mentally Ill Persons to "AVAILABLE RESOURCES."

Goebel

But that was before Federal requirements coming from:

Olmstead
Olmstead Plan: measurable goals, reasonable time frames and funding to support the plan.
DOJ Olmstead Guidance & Cases addressing state budgetary issues
DOJ Olmstead Cases addressing Certification
the Mental Health Parity & Addiction Equity Act of 2008
and the recent renewed teeth to Medicaid Network Adequacy.

We don't think the State of Colorado can any longer limit itself to "available appropriations" when it is not in compliance with Federal Law ---

AND EVERYBODY KNOWS IT.

The Amendment
to Colorado's Care and Treatment of Persons with Mental Illness Act

CRS 27-65-101 (see below)

(a) To secure for each person who may have a mental illness such care and treatment as will be suited to the needs of the person and to insure that such care and treatment are skillfully and humanely administered with full respect for the person's dignity and personal integrity;

(b) To deprive a person of his or her liberty for purposes oftreatment or care only when less restrictive alternatives are unavailable and only when his or her safety or the safety of others is endangered; ( ...... provide the fullest possible measure of privacy, dignity, and other rights to persons undergoing care and treatment for mental illness;

(d) To encourage the use of voluntary rather than coercive measures to provide treatment and care for mental illness and to provide such treatment and care in the least restrictive setting;

(e) To provide appropriate information to family members ...... location and fact of admission of a person with a mental illness to inpatient or residential care and treatment;

(f) To encourage the appropriate participation of family members in the care and treatment of a person with a mental illness and, when appropriate, to provide information to family members ...... order to facilitate such participation; and

(g) To facilitate the recovery and resiliency of each person who receives care and treatment under this article.

(2) To carry out these purposes, subject to available appropriations, the provisions of this article shall be liberally construed

The CMHS Waiver: It needs to be changed

7/17/2018

Federal Law provides for a number of "Waivers" of traditional Medicaid rules to allow flexibility.

One of those waivers is the 1915(c) Home and Community Based Waiver providing options for those who need community long term care services to avoid institutionalization.

Colorado was the first state to have a Mental Health Waiver, probably largely due to the efforts of attorney Kathleen Mullen in response to the Elderly, Blind, & Disabled waiver.

Unfortunately the MI waiver looked almost identical to the EBD waiver and was largely designed for people with physical disabilities.

In 2007, CMS conducted an audit of the CO MI Waiver and found among other things that CO was only paying about $12 a day for people with long term care needs who were on the waiver.

The audit was perceived to be negative by people in the community, presumably by CMS as well..

In 2015, the Colorado Department of Health Care Policy and Financing changed their targeting criteria for the Mental Health Waiver -- limiting it to people with mental illness who need assistance with an activity of daily living.

If the array of services is largely designed for people with physical disabilities, such a targeting limitation makes perfect sense.

This implicates all kinds of things:

Title II of the ADA & Olmstead
The Mental Health Parity & Addiction Equity Act of 2008
Medicaid Network Adequacy

Colorado needs a major revamp of the CO Community Mental Health Supports Waiver to be relevant to many of the people who most need it.

What makes this even more difficult is that some of the most important intensive services under CO's Medicaid Community Mental Health Program are designed as "Alternative Services" under a 1915(b)(3) -- Non-Medicaid Services Waiver, including:

Mental Health Residential Services
Assertive Community Treatment
Intensive Case Management

What does that mean? It means these "alternative services are limited not solely by level of care or reasonable medical necessity but savings from the managed care plan. That might be appropriate if Medicaid won't cover it -- but Medicaid will cover a lot of that.

We need a really open discussion and work-group about how Colorado is going to adequately cover people with intensive and/or long term mental health needs.

There are bed space issues, there's not enough intensive community mental health supports, and a roaring homeless and criminal justice crisis that is ultimately going to need Housing & Intensive/Long Term Care Medicaid Services for some people who find themselves in this brutal cycle.

Much of the Legislation this past session was GREAT. IT IS NOT NEAR ENOUGH.

CO's EBD Waiver

CO's CMHS Waiver

The Hidden Cost of Design Complexity -- Simplicity is Important for the Person & the Team
https://www.intercom.com/blog/the-hidden-cost-of-design-complexity/

Home & Community Based Services Authorities

Home and Community Based Services (HCBS) first became available in 1983 when Congress added section 1915(c) to the Social Security Act, giving States the option to receive a waiver of Medicaid rules governing institutional care. In 2005, HCBS became a formal Medicaid State plan option. Several States include HCBS services in their Medicaid State plans. Forty seven states and DC are operating at least one 1915(c) waiver.

State Medicaid agencies have several HCBS options:

1915 (b) Waiver Basics

States can also implement a managed care delivery system using waiver authority under 1915(b). There are four (4) 1915(b) waivers:

(b)(1) Freedom of Choice - restricts Medicaid enrollees from receiving services within the managed care network
(b)(2) Enrollment Broker - utilizes a "central broker"
(b)(3) Non-Medicaid Services Waiver - uses cost savings to provide additional services to beneficiaries
(b)(4) Selective Contracting Waiver - restricts the provider from whom the Medicaid eligible may obtain services

The Centers for Medicare & Medicaid Services (CMS) has started the process of "modularizing" its current 1915(b) waiver application to separate the various statutory authorities. First in this process is a streamlined application for States to selectively contract with providers under their fee-for-service delivery system. It simplifies the process for documenting the cost-effectiveness of the waiver but requires that States demonstrate maintenance of beneficiary access. Below are links to both the fillable PDF application as well as the technical guide for completing the application.

1915(b)(4) Waiver Fillable Application (PDF 129.07 KB)
Technical Guide for the 1915(b)(4) Application (PDF 66.62 KB)

The primary differences between a 1915(b) waiver program and a state plan program are that

States are able to require dual eligibles, American Indians, and children with special health care needs to enroll in a managed care delivery system.
States must demonstrate that the managed care delivery system is cost-effective, efficient and consistent with the principles of the Medicaid program.
The approval period for the state's 1915(b) waiver program is limited to 2 years. (Medicaid state plan authority does not have an expiration date

1115 Demonstration Basics

Section 1115 of the Social Security Act gives the Secretary of Health and Human Services authority to approve experimental, pilot, or demonstration projects that promote the objectives of the Medicaid and CHIP programs. The purpose of these demonstrations, which give states additional flexibility to design and improve their programs, is to demonstrate and evaluate policy approaches such as:

Expanding eligibility to individuals who are not otherwise Medicaid or CHIP eligible
Providing services not typically covered by Medicaid
Using innovative service delivery systems that improve care, increase efficiency, and reduce costs.

What Kind of Olmstead Progress is the Hickenlooper Administration Making -- Well, it's largely asking the Next Administration to do what the Hickenlooper Administration refused do in the previous years -- We'll Take It!

7/14/2018

What the State is doing is working with Stakeholders to make a report that is to be shared with the incoming Administration on Olmstead:

Lessons Learned
Recommendations
Long Term Care Waivers
Etc.

The Administration appears to be very open to making recommendations they refused to make in the past few years -- in some cases now suggesting those themselves -- like including DOC in Olmstead Planning.

We first suggested that to the State 4 years ago and got nowhere then or since.

And it may very well be that the new person working on this came up with it on her own -- it's such a natural thing to do --- BUT WE DO HAVE TO ASK WHY COULDN'T THE STATE DO IT WHEN WE SUGGESTED IT?

And that's not the only example. It appears that the State is ready to go along with Measurable Goals, etc. -- but not in time for them to do anything -- for someone else.

Is there a lot of hypocrisy -- yeah -- you could cut it with a knife.

Are we still deeply grateful -- yes, we are.

This actually is PROGRESS -- and it gives you a little idea about where we've been.

We're NOT against COMPROMISE in appropriate circumstances---It's HYPOCRISY we have the biggest problem with --- AND we're NOT above it ourselves.

A Lot of Advocacy Roads--They are All leading Us to the Present Moment in Housing & Medicaid Services

7/12/2018

Two Major Advocacy Areas that Impact People with Disabilities who are Institutionalized or at Great Risk of Institutionalization:

Housing
- Olmstead
Medicaid Services
- Olmstead
- Medicaid Network Adequacy, &
- Parity for Individuals with Mental Illness and/or Substance Issues

Talking about Housing in isolation is very problematic -- because some folks are going to FAIL even if they have Housing if they don't have person-centered, strength-based intensive supports.

So What Are We Going To Do:

We're going to hear what the State has to say @ the Community Living meeting tomorrow.
We're going to push for an Olmstead Data Website
We're continuing to construct our letter to CMS re: Medicaid Mental Health Services.
We'll be sharing our draft CMS letter with other advocates and ultimately the State.
We anticipate continuing to work with other Advocates and Individuals & Family Members on a proposal which may or may not include an Audit regarding Housing & Services for People with Disabilities who are institutionalized [including incarceration] or at great risk of institutionalization such as homelessness.

What is the Hickenlooper Administration's Olmstead Legacy? A transparent Olmstead DatA Website could push it over the top

7/9/2018

States have done a lot when it comes to Olmstead. But they are pretty far from Compliance.
In the words of the US Department of Justice:

12. What is an Olmstead Plan?

A: An Olmstead plan is a public entity’s plan for implementing its obligation to provide individuals with disabilities opportunities to live, work, and be served in integrated settings.

A Comprehensive Olmstead Plan must do more than provide
“vague assurances” of future integrated options or describe the public entities “general history of increased funding for community services and decreased institutional populations.

A comprehensive, effectively working plan must do more than provide vague assurances of future integrated options or describe the entity’s general history of increased funding for community services and decreased institutional populations.

The plan must include “concrete” and “reliable” commitments.

Instead, it must reflect an analysis of the extent to which the public entity is providing services in the most integrated setting and must contain concrete and reliable commitments to expand integrated opportunities.

The plan must have:

Specific and reasonable timeframes
Measurable Goals, and
Funding to Support the Plan

The plan must have specific and reasonable timeframes and measurable goals for which the public entity may be held accountable, and there must be funding to support the plan, which may come from reallocating existing service dollars.

The plan should include commitments for each group of persons who are unnecessarily segregated.

The plan should include commitments for each group of persons who are unnecessarily segregated, such as individuals residing in facilities for individuals with developmental disabilities, psychiatric hospitals, nursing homes and board and care homes, or individuals spending their days in sheltered workshops or segregated day programs.

To be effective, the plan must have demonstrated success in actually moving individuals to integrated settings in accordance with the plan.

A public entity cannot rely on its Olmstead plan as part of a defense unless it can prove it is comprehensive and effectlvely working to address needless segregation.

A public entity cannot rely on its Olmstead plan as part of its defense unless it can prove that its plan comprehensively and effectively addresses the needless segregation of the group at issue in the case.

Any plan should be evaluated in light of the length of time that has passed since the Olmstead decision.

Any plan should be evaluated in light of the length of time that has passed since the Supreme Court’s decision in Olmstead, including a fact specific inquiry into what the public entity could have accomplished in the past and what it could accomplish in the future.

https://www.ada.gov/olmstead/q&a_olmstead.htm

There are a few months left of the Hickenlooper Administration. We have said for some time that one of the Administration's big strengths is DATA.

Colorado really could begin the creation of an Olmstead Data Website with input from Stakeholders.

It's not just the mental health community that is concerned about DATA, but the Developmental Disability Community, Brain Injury, Physical Disability, etc.

That would be no small accomplishment -- and as far as we know -- no State has been that transparent; although some do have Olmstead websites.

It's the DATA that is the key to the:

Measurable Goals
Reasonable Time Frames, &
Funding to Support the Plan

We have been very critical of the Hickenlooper Administration on Olmstead -- BUT if they could leave that kind of transparent legacy on DATA--- we would be eternally grateful.

Focusing on Olmstead Planning has some possible benefits: Avoiding the Fundamental Alteration Defense & Making It easier for Administrative Enforcement

7/2/2018

The "Fundamental Alteration" Defense under Olmstead has always been pretty limited.

'Burden on the public entity to prove that immediate relief for the plaintiffs would be inequitable."

I don't think many of us have completely appreciated the above sentence in No. 10 of the 2011 DOJ Guidance on the Americans with Disabilities Act & Olmstead.

It's the "Immediate Relief" that has the potential to make things unreasonable and raise the possibility of the "Fundamental Alteration Defense."

Those conditions are much less likely to exist in a Demand for a Comprehensive, Effectively Working Olmstead Plan with:

Measurable Goals
Reasonable Time Frames; and
Funding to Support the Plan

Further, Administrative Enforcement could be handled for State Olmstead Planning by CMS and HUD in relevant respects.

Perhaps Federal Technical Assistance Centers on Olmstead Planning could assist the States,

DOJ

10. What is the fundamental alteration defense?

  A:   A public entity’s obligation under Olmstead
to provide services in the mostintegrated setting is not unlimited.

A defense for the public entity is the
fundamental alteration  defense.

A public entity may be excused in instances where it can prove that the requested modification would result in a “fundamental alteration” of the public entity’s service system.

Burden on the public entity to prove that
immediate relief for the plaintiffs would be inequitable.

  A fundamental alteration requires the public entity to prove “that, in the a location of available resources, immediate relief for plaintiffs would be inequitable, giventhe responsibility the State [or local government] has taken for the care andtreatment of a large and diverse population of persons with [ ]
disabilities.”18

It is the public entity’s burden to establish that the requested modification would fundamentally alter its service system

https://www.ada.gov/olmstead/q&a_olmstead.htm

Val's Blog

THE STATE'S PREDATORY FINANCIAL EXPLOITATION OF MEDICAID COMMUNITY TRANSITION WORKERS

-----MANY OF WHOM ARE PEOPLE WITH DISABILITIES, NEEDS TO STOP

IF THERE IS A CMS ISSUE WE NEED TO FIND A WAY AROUND IT. THIS IS WRONG IN A BIG, BIG WAY

Reforming an Incoherent CO Medicaid Program

Federal Law & "Subject to available resources" under CO's Care & Treatment of Persons with Mental Illness Act

The CMHS Waiver: It needs to be changed

What Kind of Olmstead Progress is the Hickenlooper Administration Making -- Well, it's largely asking the Next Administration to do what the Hickenlooper Administration refused do in the previous years -- We'll Take It!

A Lot of Advocacy Roads--They are All leading Us to the Present Moment in Housing & Medicaid Services

What is the Hickenlooper Administration's Olmstead Legacy? A transparent Olmstead DatA Website could push it over the top

Focusing on Olmstead Planning has some possible benefits: Avoiding the Fundamental Alteration Defense & Making It easier for Administrative Enforcement

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Val's Blog

​-----MANY OF WHOM ARE PEOPLE WITH DISABILITIES, NEEDS TO STOP IF THERE IS A CMS ISSUE WE NEED TO FIND A WAY AROUND IT. THIS IS WRONG IN A BIG, BIG WAY

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Archives

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-----MANY OF WHOM ARE PEOPLE WITH DISABILITIES, NEEDS TO STOP

IF THERE IS A CMS ISSUE WE NEED TO FIND A WAY AROUND IT. THIS IS WRONG IN A BIG, BIG WAY