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Questions surround the governor’s budget plan for DDS
In a conference call with advocates last week, Department of Developmental Services Commissioner Elin Howe put what seems to be a highly optimistic spin on the governor’s FY 14 budget plan for her department.
Howe said that, “I think we’re entering into this (budget process) in better shape than in a considerable period of time.” Last spring, she similarly described the plan for the current-year DDS budget, as it emerged from the House Ways & Means Committee, as “the best budget the Department has had in five years.”
Governor Patrick’s $1.5 billion, FY 14 budget plan for DDS appears to be typical of his overall budget proposals for human services, but we aren’t ready to make too many rosy projections about it.
First, there’s the question whether the governor’s budget proposals are realistic, given that they depend on passage of his plan to raise taxes. And as was the case last year, Howe seems to be focusing on the brightest spots in a budget for her department that appears to have many dark spots as well.
Howe did begin the Wednesday call by noting that the governor’s proposed budget (H1) depends on legislative passage of his proposal to increase the income tax rate to 6.25 percent. The state’s current revenue estimate for the coming fiscal year “doesn’t support all of what we’re trying to do,” she said.
Howe said, though, that she had no figures on what might happen to the DDS line items for FY 14 if the Legislature were to balk at the governor’s tax plan, which seems a good possibility.
Secondly, while Howe noted that H1 calls for increasing a number of DDS line items, she acknowledged there are also a number of projected shortfalls and cuts in it. Among the line items in H1 with projected shortfalls are DDS Administration (which funds service coordinators), State-operated group homes, and Community-based Transportation programs.
Also, the community-based Adult Family Supports and Turning 22 accounts would be only level-funded under H1, while the Autism Division account would be cut by a small amount.
In addition, the state-run developmental center line item would be cut by $10.4 million, bringing the total amount cut from this account by the Patrick administration to nearly $80 million since FY 2009. As we’ve said many times before, we have yet to see how that cut in developmental center funding has provided much in the way of benefits for the average DDS client in the community system.
Moreover, Howe said there is no money in the H1 budget for the developmental center account for the continued operation of the Fernald Center in the coming fiscal year, meaning the Department will once again have to ask for supplemental funding for Fernald.
The following is a line-item breakdown for DDS, under H1 for FY14:
DDS Administration and service coordinators (5911-1003):
H1 would increase this line item by $1.7 million, to $64.7 million. However, Howe said this increase is the result of salary increases due to collective bargaining with the SEIU state employee union. Without an additional $500,000 in the account, 10 to 12 service coordinator jobs could be lost, she said.
Service coordinators have the critical task of making sure DDS clients are receiving the right services in the community system, and their caseloads are growing out of control. SEIU is asking for an additional $2.5 million in the administrative line item in order to restore 50 service coordinator jobs out of the 82 jobs lost since 2007.
Community Transportation (5911-2000):
H1 would increase this account by $537,000, to $13 million. However, Howe said this increase will still result in a shortfall in the transportation account of $500,000.
Community Residential (5920-2000):
H1 would increase this account by $71.7 million, to $860.3 million. Howe said some of this increased funding is the result of “Chapter 257,” a 2008 “global payment” initiative, which established pre-set rates for DDS residential service vendors. The Arc of Massachusetts says the Chapter 257 increase amounts to $55 million and is a “down-payment” on a total $175 million increase in funding that is expected to be given to the vendors.
State-operated Residential (5920-2010):
H1 would increase this account by $10.6 million, to $191.4 million. Howe noted that this increase is largely for the operation of new state-run group homes for residents from developmental centers marked for closure. Overall, she said, the increase in this account is $3.5 million less than what DDS requested, meaning the Department is once again projecting a shortfall in needed funding.
Community Day and Work (5920-2025):
H1 would increase the amount by $28.4 million, to $161.9 million, which is good news.
Adult Family Supports (5920-3000):
H1 would level-fund this account at $49.5 million, which is not good news.
Autism Division (5920-3010):
H1 would cut this account by $22,166, to $4.6 million. Bad news.
Turning 22 (5920-5000):
H1 would level-fund this account at $6 million. However, it would increase the annualized amounts for Turning 22 clients in the community residential, community day programs, and community transportation accounts. Mixed news.
Facilities (developmental centers) (5930-1000):
H1 would cut this account by $10.4 million, to $123 million. The Facilities account has been cut by nearly $80 million since FY 09.
Templeton Retained Revenue (5982-1000):
H1 would level-fund this account at $150,000
Non-DDS line items:
EOHHS Salary Reserve (1599-6901):
It does not appear that H1 contains any funding for the salary reserve for wage increases for direct-care workers employed by DDS vendors. In November, Patrick froze $20 million that had been placed in the fund for the current fiscal year.
Disabled Persons Protection Commission (1107-2501):
H1 would increase this account by $23,000, to $2.3 million. The effect, however, is level-funding of the agency, which has been level-funded since FY 2009. The DPPC is an independent state agency charged with investigating complaints of abuse and neglect of people with intellectual and other disabilities.
We’ll stay tuned of course to see what the House and Senate do with the governor’s budget for DDS. All in all, we don’t share the assessment that we’re entering into this budget process in great shape.
We are no doubt well into an era of reduced public services and of having to do more with less. Unfortunately, the administration doesn’t appear to have put much thought into how to accomplish that. It’s main initiative has been to close developmental centers, which hasn’t boosted funding to most community-based accounts.
Update on the National Council on Disability’s anti-institutional bias
We wrote here before about the extreme ideological position of the National Council on Disability, which called last month for the closure of all residential facilities for persons with intellectual disabilities with more than three people living in them.
The NCD appears to be at it again, this time in the wake of the tragic shooting deaths of children and teachers in Newtown last month by a young man who may have had a mental illness or at least needed mental health treatment.
In a January 11 letter to Vice President Joe Biden, in Biden’s capacity as head of the president’s gun violence task force, Jonathan Young, chair of the NCD, appears to be more concerned about creating “an unnecessary expansion in institutionalization” than in ensuring that people who pose a danger to others get treatment or medication.
Young uses most of the letter to urge the vice president to avoid any measures that could unnecessarily institutionalize people, involuntarily commit them, or force treatment on them.
No one would disagree with Young’s contention in his letter that people who pose no risk of violence should not be subject to institutionalization or forced treatment. But Young says little about what the task force could or should do to protect everyone’s safety.
While COFAR’s mission is to advocate on behalf of people with intellectual disabilities, not specifically on behalf of people with mental illness, we are commenting on Young’s letter because much of the debate over deinstitutionalization of both groups of people has been similar. Certainly, Young and the NCD take the same view in favor of complete deinstitutionalization of both groups, and make the same flawed arguments about each.
In his letter to Biden, Young states that “institutional care has a long-standing history of poor outcomes and civil rights violation (sic) among persons with psychiatric disabilities.” At the same time, he bemoans a “profound shortage in community-based services” for people with mental illness.
There are a number of potential contradictions here. First, Young and many other institutional opponents gloss over the fact that many so-called community-based services are institutional in nature. The NCD, in fact, takes this viewpoint to an extreme. With regard to people with intellectual disabilities, the NCD has stated that even community-based group homes are institutional and should be closed down if they have more than three people living in them.
Young and the NCD can’t have it both ways. Young talks about a shortage of community-based services and yet he and the NCD want to dismantle much of the community-based infrastructure that exists for people with intellectual disabilities.
Secondly, while institutional care, whether of persons with psychiatric disabilities or intellectual disabilities, has certainly had its problems in the distant past, that care has come a long way. It’s deinstitutionalization, which has had the more checkered recent history and the poorer outcomes.
Here is an assessment in 2007 of the success or lack thereof of deinstitutionalization of the mentally ill, by the Kaiser Commission on Medicaid and the Uninsured.
The history of deinstitutionalization began with high hopes and by 2000, our understanding of how to do it had solidified. But it was too late for many. Looking back it is possible to see the mistakes, and a primary problem was that mental health policymakers overlooked the difficulty of finding resources to meet the needs of a marginalized group of people living in scattered sites in the community (my emphasis).
This marginalization of people living in scattered sites in the community is something we at COFAR have been saying for a long time with regard to people with intellectual disabilities. It’s distressing that the NCD, an independent federal agency that advises the president and Congress on disabilities issues, has apparently chosen to rewrite the real history of deinstitutionalization.
Young’s other major concern in his letter to Biden appears to be that safety-related measures under consideration by Biden’s task force, such as requiring colleges to refer students with perceived psychological disabilities for evaluation and institutionalization, might perpetuate a stigma or damaging stereotypes about mental illness. This concern on Young’s part appears to override his concern about the need such people might have for treatment.
We need to have a constructive discussion concerning the future of care for people with both mental illness and developmental disabilities. One way to begin is to stop the stereotypes and stigmas about institutional care.
DDS residential services vendors operating with expired licenses
An undetermined number of service vendors to the state Department of Developmental Services have operated group homes and provided other services to clients of the Department despite having expired state licenses, according to a survey done by COFAR.
The survey identified at least three vendors — the Center for Human Development (CHD), Vinfen, and Independent Living for Adults with Special Needs — that were operating with expired two-year licenses as of mid-December.
The situation appears to be the result of an inability of DDS to approve the vendors’ license renewal applications within a prescribed time frame of 60 to 120 days, possibly due to a lack of adequate staffing in the Department.
DDS regulations allow vendors to continue to operate with expired licenses as long as those vendors submit license renewal applications more than 60 days prior to the license expiration dates. That was the case with the three vendors identified by COFAR, according to DDS.
The DDS licensure system for vendors is viewed as a critical means of ensuring that the vendors provide quality care and safe environments for thousands of people with developmental disabilities. According to an online DDS Licensure Manual, the licensure process he is based on the ability of a vendor to meet several “essential safeguards” that concern personal safety, health, rights, a competent workforce, and individual care plans.
While the regulations appear to provide the Department with a technical reason for declaring expired licenses valid, it is concerning that DDS is apparently unable to ensure that license approvals are not more than two years old for all vendors.
According to DDS, Independent Living submitted its license renewal application on April 4, 2012. As of mid-December, some eight months later, the Department had apparently not yet approved the application or issued a new license to the vendor to continue to operate. The vendor’s license expired in August 2012.
Similarly, CHD submitted its license renewal application in July 2012 and Vinfen submitted its application in August 2012, according to DDS, and yet neither of those vendors had apparently been issued new licenses to operate as of mid-December. CHD’s license expired in October, and two licenses held by Vinfen expired in November.
COFAR emailed DDS Commissioner Elin Howe on January 2, seeking an explanation as to why it was taking so long in each of these cases for DDS to approve the licensure applications and issue new licenses to the three vendors. A revision of the DDS licensing process in 2009 envisioned, among other things, improving the “efficiency” of the process and shortening the time it takes to survey a vendor’s group homes from a maximum of 14 days down to 5 days, according to the DDS Licensure Manual.
COFAR last surveyed online DDS licensure reports in November for some 30 DDS vendors and found that 11 of the reports appeared to be out of date on the DDS website because they listed licenses granted to the vendors that appeared to have expired. Among those reports were the following:
- A licensure report for CHD, dated November 2010, which listed an expiration date for the vendor’s license for residential and individual home supports of October 28, 2012. As of January 7, 2013, the November 2010 licensure report was still the only posted document for this vendor on the DDS site.
- A licensure report for Vinfen, dated December 2010, which listed an expiration date of November 8, 2012 for each of the vendor’s licenses for residential and individual home supports and for employment and day supports. As of January 7, 2013, a follow-up report, dated March 2011, was posted on the DDS site for Vinfen, but the document did not indicate any change in the license expiration date.
- A licensure report for Independent Living, dated September 2010, which stated that the vendor’s license for residential and individual home supports had been “deferred” as of that date because six “critical indicators” had not been met during an August 2010 licensure survey. As of January 7, 2013, the September 2010 licensure report was still the only posted document for this vendor on the DDS site.
In letter to COFAR, dated December 19, 2012, Robert Smith, a DDS assistant general counsel, stated that the licenses for the three vendors were considered valid by the Department because the license renewal applications for each vendor had been submitted more than 60 days prior to the license expiration dates.
Smith said that while the license for Independent Living had been temporarily deferred in 2010, the vendor corrected its licensure deficiencies in October of that year and was subsequently issued a two-year license that expired on August 26, 2012. Because the vendor had submitted its license renewal application in April 2012, more than 60 days prior to the expiration of the license, that license, like those for CHD and Vinfen, was considered valid by the Department, Smith said.
In an earlier December 5, 2012 letter to COFAR, Smith stated that the Department was “actively correcting delays in posting current reports on its website.”
DDS loosens IQ eligibility restrictions
Bowing to criticism from families and advocates, the Patrick administration has promulgated new, final regulations that will loosen its restrictive definition of “intellectual disability” in determining people’s eligibility for services.
It appears that under the new regulations, the Department of Developmental Services will no longer automatically deny services to anyone who scores above a 70 on an IQ test.
The new DDS regulations refer to the American Association on Intellectual and Developmental Disabilities (AAIDD), which defines intellectual disability as involving “significant limitations both in intellectual functioning and in adaptive behavior.” The AAIDD also states that a limitation in intellectual functioning can be indicated by an IQ score as high as 75.
Meanwhile, the state Legislature has enacted a bill (H. 4252), which would similarly adopt the AAIDD definition of intellectual disability in Massachusetts. The bill, filed by Representative Dan Winslow, was on the governor’s desk as of today, awaiting his signature. COFAR is asking people to call the governor’s office to urge that the governor sign the bill into law.
In 2006, DDS adopted regulations restricting eligibility for services to people scoring 70 or below on an IQ test. This led to the denial of benefits to an undetermined number of people and to a lawsuit filed on behalf of a woman who had had scored 71 on an IQ test at age 18, 69 at age 40, and 71 at age 42. The woman, who was subsequently denied services by DDS, was represented in the case by Thomas Frain, who is also president of COFAR.
In July, the Massachusetts Court of Appeals ruled in the case that the DDS’s 2006 regulations were invalid in defining intellectual disability without referring to a “clinical authority.”
DDS initially responded to the Appeals Court ruling by proposing emergency regulations in September that named the Department itself as a “clinical authority” in determining the presence of an intellectual disability. But that led to a chorus of objections from advocacy organizations, including COFAR, and family members of intellectually disabled people.
In the final regulations, DDS has withdrawn the designation of itself as a clinical authority. However, questions remain as to how much weight DDS will place on factors other than IQ in determining eligibility for services. The Disability Law Center, a federally funded public interest law firm, is also concerned that in basing eligibility for services solely on intellectual disability, Massachusetts is failing to serve many people with other types of developmental disabilities, including many people with autism.
That concern was reflected in the testimony of dozens of people at a DDS hearing in November that members of their families with severe disabilities were falling through the cracks in the system and failing to get services from the Department.
The final DDS regulations nevertheless appear to be a step in the right direction. It’s also important, as has been discussed here on BMG, that the language in the regulations be enshrined into law — hence the importance of Rep. Winslow’s bill.
COFAR blog 