Julie Reiskin's Comments on LTSS HCBS Waiver Amendment
October 11, 2015
To Whom It May Concern:
I am submitting these comments on behalf of the Colorado Cross-Disability Coalition (CCDC). CCDC is the largest disability rights organization in Colorado and we are run by and for people with all types of disabilities. Many CCDC members including people on our staff and board rely on HCBS programs.
Please accept these comments in response to the Colorado Department of Health Care Policy and Financing's 1915(c) waiver amendment to the Elderly, Blind, and Disabled waiver. My comments apply also to the BI, SCI, and CMHC waiver renewals. I am asking that CMS deny the proposed dramatic and significant change of separating the rate methodologies for personal care and homemaker services based on delivery methodology. I support the other proposed waiver amendments and will not comment further on those as substantial comment and consumer input on the other changes such as allowing IHSS clients to receive services in the community and the increased home modification amount have been well vetted amongst stakeholders.
I strongly urge CMS to not allow the proposed separation in personal care and homemaker rates. It will be detrimental to clients to grant agencies a large increase while leaving CDASS workers out. CDASS is a delivery methodology—not a specific service. The services are personal care and homemaker. There are many reasons to deny this change.
1) Equity and best interest of clients—the Medicaid long term care programs are about clients and assuring the health and welfare of clients. CDASS was created as an option because agency based care does not work for many clients. We also have IHSS as an option but most IHSS agencies will not take clients who only have unskilled care needs. Many clients moved to CDASS because agencies could not or would not provide all of the services they needed. Some clients suffered severe health problems after being unable to access care or going without care often when workers did not show up or cancelled visits. There were also reports of theft and abuse. CDASS changes the dynamic –when the client is the employer rather than a necessary evil there are far fewer instances employee call-offs, abuse allegations, theft, etc. If there is a problem the client can simply hire someone else including a family member or neighbor who can easily fill in as needed. Currently clients manage an annual allocation. In order to pay an adequate wage, clients are required to use fewer hours and often get more efficient people by paying a higher hourly rate for unskilled services. Clients are already at a disadvantage of not being able to pay any mileage or travel costs. If the gap is widened and agencies start at $4 an hour above clients with a methodology that continues this inequity forever, it will make it very challenging for CDASS employers/clients to hire quality workers and to receive the proper number of hours. We agree the rates are too low but the increase should be for all personal care and homemaker workers. We also believe that the increases should be required to go to the workers either directly or in the form of a direct benefit such as health insurance. Agencies should not be allowed to use these funds for lobbying or other overhead not related to care.
2) Creating a different rate methodology for one delivery option is a dramatic policy change which should have been done in a bill not during a budget process. In Colorado major policy changes are supposed to occur through a change in the law, not just the budget. There are no public hearings during the budget process. The attachments show that the JBC analyst worked only with two industry lobbyists, and did not work with anyone from the disability community. CDASS clients are unable to use any portion of our yearly allocations to pay lobbyists, and our few volunteer lobbyists who monitor the Legislature missed the back room discussions that happened. Had the disability community volunteer lobbyists or HCPF staff that understands how this works been involved, the JBC could have been apprised that this change would indeed take both a state plan amendment and waiver amendment as the rate methodology that ties CDASS and agency rates together is in both the waivers and state plan. The work papers provided to the JBC give no reason to dismantle the practice of tying CDASS and agency rates together. The proposed rate methodology for CDASS in the waiver amendment is extremely flawed. It seems to start with a premise of creating a rate based on the agency tie, then severing it with no way for CDASS increases and no explanation about why the data in the HCA letter does not apply to CDASS. In their letter to the Colorado Joint Budget Committee the Colorado Home Care Association said "The home care industry is requesting a minimum $20/hour rate for all types of personal care / homemaker services." All of the reasons and data presented in the letter apply to CDASS as well. Even the one model of CDASS that does not require insurance known as FEA still does not mean that workers do not bear the cost of the ACA compliance. These workers pay for their own insurance and need a wage that will be adequate. Apparently in some closed door process the cost of doing a $20 rate for all proved too costly so when they were compromising on the dollar amount that would be the new targeted rate increase they decided that CDASS would not be included. This was instead of a small reduction of the hourly rate to something the state could afford that would cover all of the workers. The CDASS portion was $6 million of a $56 million request. While the JBC analyst email says that the members were told CDASS was not covered we know now that at least some JBC members and HCBF management staff were NOT aware of this disparity and would not have supported it had they been aware. It is for this precise reason that policy changes are supposed to be done via a bill, not a budget action.
3) CDASS clients already pay for the administrative costs of CDASS by having our rates reduced by 10.75%. This covers state overhead like the FMS providers and training vendors. Home care agency overhead comes out of the regular HCPF administrative budget. CDASS clients also pay for the employer-related costs through our allocations. Clients are given a “show me the money” chart to help with budgeting and this chart shows that clients are paying social security, unemployment, workers compensation, and all taxes out of their allocations. This exacerbates the difference in the amount of money clients have to hire workers versus what agencies will have if this is allowed to go through. Clients have a little more than $13 after the 10.75% is taken and agencies will have $17. This is a difference of almost 25%. Moreover, agencies bill Medicaid for travel time and clients are not allowed to do this. CDASS clients put in a lot of time and energy to manage our care according to the rules. We take training and do the administrative work—in exchange we get to use the overhead we save for services. We have other costs including advertising that we pay for ourselves. We make these sacrifices in order to have the high quality of care and control over who comes into our homes and who touches our bodies. Our employees should not be penalized because we use this delivery options. They have the same bills to pay as agency employees and do the same hard work. If anything CDASS workers should be paid more as they have lower rates of absenteeism and are often held to higher standards.
4) The rate methodology outlined in the waiver amendment makes no sense and was not vetted with the client community. There have been no public meetings about this rate methodology and the proposal gives no data or background explaining how they came up with this process. It seems to just take our current rate and leave it flat forever while agencies get endless increases. It does not address any of the other inequities such as the travel pay or even cap how much agencies can spend for highly paid lobbyists. All changes should have substantial public comment and there is not enough in this request to make adequate comments. There is no reason given in the request to explain why the agencies should receive such a large increase. This information as well as agency cost reports, how they are currently using their money, etc., all must be made public for adequate commenting.
5) The separation of personal care and homemaker rates based on service delivery is outside generally accepted practice, and clearly outside CMS guidance. From page 253 the January 2015 1915(c) Waiver application Technical Guide (Version 3.5) from CMS: Participant Direction. When a service may be participant directed, describe whether the method of rate determination in any way differs from the methodology that is utilized when service is provider managed. A state must have uniform rate determination methods or standards that apply to each waiver service. Rates may be established by the operating agency so long as they are in accordance with methods or standards that have been adopted or approved by the Medicaid agency. The same methods or standards must be applied in all jurisdictions where waiver services are furnished. When local government agencies establish provider payment rates, the rates must be determined employing the uniform methods or standards that have been adopted by the state in order to ensure that payments across all areas of the state are equivalent (differences in rates are based on factors specified in the methodology or formula – e.g., difficulty of care or geographic adjustment factors). The description of rate determination methods must clearly identify the entity (or entities) that perform the rate determination function and the oversight process that is employed to assure the integrity of the rate setting activity (i.e., the methodology is adhered to and any differences in rates for a waiver service are consistent with the methodology). Also, describe the extent to which public comment is solicited concerning rate determination methods.
Also, describe how the state makes information available about payment rates available to waiver participants so that they are aware of the costs of waiver services. –The state did not describe how they make information available to participants making comment about the specific methodology impossible.
While we know the technical guide is just a guide and not hard set rules, the intent of fairness is very clear. Since the pilot consumer directed program in Colorado, CDAS, up until this waiver amendment, CDASS personal care and homemaker rates have been based on agency rates for the same services minus 10.75% to help cover the cost of fiscal intermediary services.
In closing we want to acknowledge that the rate for personal care and homemaker needs to be increased we believe that the increase must be for all providers regardless of delivery method. If CMS believes the rationale to do this large increase for agencies there is no reason to deny it to workers of CDASS clients as the service is the same. Colorado has options that are in line with CMS directives and overall philosophy of CMS which focuses on the health and welfare of the client, not to act as a way to funnel resources to providers with the most aggressive lobbyists. The solution is for Colorado to either expand 1915(i) or implement 1915(k). Clients want choice of delivery, and the home care industry is having trouble dealing with increased utilization of consumer direction through Colorado's two models: IHSS and CDASS. If Colorado's Medicaid department is truly committed to person centered care this means ensuring all clients who are eligible for personal care and homemaker services receive those services they need. Traditional agencies are often unable to assure that clients can receive all of the services they need. CMS clearly wants to see more not less consumer direction and options like Community First Choice demonstrate this forward thinking desire. The option to consumer direct and hire family members will ensure clients get served far better than increasing rates for agencies but not CDASS.
For all of these reasons we respectfully request CMS denies only this aspect of the waiver amendments and allows the other amendments to go through. If that is impossible for some reason then unfortunately the entire waiver amendment should be denied and both the legislature and HCPF should be cautioned against allowing something like this to happen in the future. If this must happen it is out hope that HCPF can simply remove the targeted rate increase and resubmit the other amendments for a speedy approval as they are all important for our community.
If you have any questions please feel free to contact me at your convenience.