Public Comment regarding Conflict Free Case Management --The Arc of Aurora, Hanni Raley, March 12, 2015
Colorado is out of compliance with CMS' 441.730(b) Conflict of Interest Standards, HCBS Final rule intended to address Conflict Free Case Management and to be implemented in March 2014.
There is no national Conflict-Free Case Management (CFCM) template for Colorado to insert into the design of our existing LTSS system, other than the complete separation of Service Provision from Targeted Case Management (TCM). At its core, CFCM implementation directly rejects the historical nationwide practice where agencies and providers may ultimately self-promote the agency over the consumer's choices. The CFCM requires Colorado get serious with rigorous oversight and unbiased appeals processes, that cannot be delegated to or addressed by organizational faux firewalls.
At present the majority of Community Centered Boards are entrenched in COl, providing both TCM and services. Case managers are performing quality oversight activities over their own agency and their own colleagues and employers. We cannot expect "Self-policing" to lead to an eliminated conflict of interest. In the absence of a model template, Colorado must use best practice guidelines to develop a system which entirely avoids Conflict of Interest (COl), using final rule language as its map for reform.
How does Colorado Currently Measure Up to CFCM Standards?
Pursuant to the Code of Federal Regulations under 441.730(b) Conflict of Interest Standards, Colorado is NON-COMPLIANT and must define conflict of interest standards. Those CFCM standards must address individual and agency agents who conduct (whether as a service or an administrative activity) the evaluation of eligibility for State plan HCBS, who are responsible for the independent assessment of need for HCBS, or who are responsible for the development of the service plan.
The conflict of interest standards apply to all individuals and entities, public or private and at a minimum, these agents must not be any of the following:
- Related by blood or marriage to the individual, or to any paid caregiver of the individual
o Where are we?
• COMPLIANT: Currently unallowable.
- Financially responsible for the individual
o Where are we?
• NON-COMPLIANT: Many Service Providers, entrenched in conflict are considered Representative Payees for Individuals in LTSS programs.
- Empowered to make financial or health-related decisions on behalf of the individual
o Where are we?
• COMPLIANT: While Guardians and IDT teams often support decisions on behalf of an individual, it is currently unallowable for team members to provide TCM services.
• OF CONCERN: Conflicted Case Manager/Agency or service provider may develop a care plan that is more convenient for the provider than a plan that is person centered.
- Hold financial interest, as defined in §411.354, in any entity that is paid to provide care for the individual
o Where are we?
• NON-COMPLIANT: Entrenched in COl Service Providers, are employees of the Case Management Entity or CCB. The Conflicted Case Manager/Agency may be more interested in a care plan that retains the consumer as a client than one that assists with independence. The agent may not suggest outside providers due to concern over lost revenue.
- Providers of State plan HCBS for the individual, or those who have an interest in or are employed by a provider of State plan HCBS for the individual, except when the State demonstrates that the only willing and qualified agent to perform independent assessments and develop person-centered service plans in a geographic area also provides HCBS, and the State devises conflict of interest protections including separation of agent and provider functions within provider entities, which are described in the State plan for medical assistance and approved by the Secretary, and individuals are provided with a clear and accessible alternative dispute resolution process.
o Where are we?
• NON-COMPLIANT: Entrenched in COl Service Providers are both providing State and Waiver Services AND are employed by a provider of State Plan HCBS. The Conflicted Case Manager/Agency may have an incentive during the assessment to assess for more or less services than the consumer needs.
How do the Task Force Recommendations measure up to CFCM Standards?
- Complete Separation Recommendation: Agencies must decide whether to provide case management or HCBS direct services
o COMPLIANT: CFCM can be realized under this model! In fact, it may be the only recommendation which truly meets the intent of the rule offered by CMS. All barriers can be addressed thought systematic intention. Regional Care and Collaborative Organizations (RCCOs) should be considered an acceptable and established alternative. An adequate timeline must be developed to ensure separation does not result in unnecessary interruption to an individual's services and supports. Geographical exemptions are unnecessary, as RCCOs have proven the ability to reach the geographical needs of their local Constituents.
- External Separation Recommendation: Agencies may offer case management and HCBS direct services but not to the same individual
o LIKELY NON-COMPLIANT: True implementation and compliance of this model in light of the HCBS Final Rule leaves much to be desired and avoids the intention of the rule. CFCM could potentially be realized, but intensive and routine auditing by an objective state entity would be necessary to ensure application of the rule. Additionally, consequences must be developed to ensure ill-intentioned Case Management Agencies are remedied, with a very short plan of correction timeline if the rule is not being followed.
- Informed Consent Opt-Out Recommendation: Individual makes an informed consent to opt-out of separate case management and HCBS direct services
o LIKELY NON-COMPLIANT: True implementation and compliance with this model in light of the HCBS Final Rule leaves much to be desired and avoids the intention of the rule. CFCM is unlikely to be truly realized as this model would replicate the current system in place. COl statements are already offered by CCBs but Case Managers are responsible for reviewing the document for non-readers or family members. This discussion is often held at the end of an annual meeting, led by a Case Manager that is in a COl position, and rarely fully explained or given time to choose.
What changes are necessary for Colorado in meeting CFCM requirements?
Thousands of Colorado's most vulnerable citizens depend on the services delivered through the waivers impacted by the CFCM rule, Colorado cannot continue to pretend that radical changes are not necessary to meet this requirement. We know what doesn't work: a Task Force, loaded with Providers and Conflicted Community Centered Board representatives (similar to a Colorado task force convened in 2010) with an expectation of a fair and conflict free recommendation. We cannot expect innovation and creativity from the same players who by nature must resist proposed changes because of their conflict!
Perhaps what Colorado needs is to focus on the Quality, Choice, and Experience of our system.
Quality is more than words. It is demonstrated by the actions of qualified and well trained people who can express an understanding of the needs of the person they serve. Quality is realized when people with disabilities are able to easily access all services and supports as delivered by qualified and competent people, able to help realize the needs of the person being served. Quality becomes a standard when all services and supports meet or exceed the person centered plan for each individual and when these services are delivered in a mutually respectful manner that includes regular communication and ultimately reflects the person centered plan. Quality Case Management is free from inherent conflict of interest and foundationally is built from a collaborative process of assessment, planning, facilitation and advocacy for options and services to meet an individual's health needs through communication and available resources. Eligibility determination MUST be separated from direct service provision. Case Managers should be distinctly separated from the provision of services. Eligibility should be determined by an entity or organization that has no fiscal relationship to the individual.
To avoid COl, Colorado must eliminate bias. Case Managers can no longer act as promoters for any agency (real or the appearance of) and instead, should consider case management as a service alongside service delivery. Choice is an implicit human right and will never be realized if options are not offered. Choice is not necessarily experienced by simply being provided a list of potential case management agencies, or being provided the choice of county case management versus one private agency. Rather, individuals need opportunities to meet potential case managers, to hear from other consumers about different case managers or case management agencies, and also be afforded other means to experience real market choice. Choice goes beyond a statement specifying the consumer has a right to make an independent choice of service providers. The individual receiving services MUST be the center of the decision making and planning process and MUST be supported by a Case Manager who is solely focused and prioritizing the individual's choice as they facilitate his/her rightful access to Long-Term Services and Supports.
The experience of the end-user should be the ultimate litmus test used by the Case Management body for evaluating the quality and choice of community services. A CFCM system must include strong oversight and quality management to promote consumer-direction. Beneficiaries must be clearly informed about their right to appeal decisions about plans of care, eligibility determination and service delivery. Colorado must develop clear, well-known, and accessible pathways for consumers to submit grievances and/or appeals for assistance regarding concerns about choice, quality, eligibility determination, service provision and outcomes. Grievances, complaints, appeals and the resulting decisions must be sufficiently tracked and monitored. Information obtained should be used to inform program policy and operations as part of a continuous quality management and oversight system. A rule without a consequence is only an opinion. If no consequences exist, CFCM will never be realized. Consumer experiences of service provision AND Case Management must be tracked and documented by objective parties. Meaningful stakeholder engagement strategies must be implemented prior to policy and procedural changes. Real and meaningful community engagement is more than a rubber stamp. Meaningful engagement is demonstrated when all parties listen, share and take action together Complex funding systems, overlapping eligibility determinations, and burdensome requirements for documentation all contribute to systems with redundancy, needless complexity, and inequity. Efforts to improve case management should include addressing the design and effectiveness of Colorado's quality assurance system, standardizing performance measures across funding streams and disability groups, standardizing caseload size, and coordinating efforts across all disability groups. Finally, reform efforts should be balanced against the basic principles of improving access and service availability while assuring basic safeguards, improving accountability and performance, honoring individualization, and promoting consumer choice and self-determination.
Ultimately, every crisis is an opportunity in disguise. Colorado's conflict of interest issue is an opportunity and the people who use this system to manage their lives are hungry for this change. There is not time to continue the debate of whether there is a conflict: There is a conflict. Time is of the essence and we strongly urge that a final decision be made to completely separate the provision of service from case management.