Archive for May, 2015

‘Real Lives’ contract with private firm raises questions

As part of a push toward so-called self-directed services for the developmentally disabled, the state has established a payment system for those services that has exclusively benefited a Boston-based consulting firm.

The Department of Developmental Services is paying Public Partnerships LLC (PPL) close to $1 million a year in fees to perform what appear to be primarily check-processing and basic accounting services in connection with three self-directed services programs, according to records obtained from the Department under a Public Records Law request and to online contracting information.  Those programs currently appear to serve less than 1,000 people in the DDS system.

In a written response to us, Marianne Meacham, the DDS general counsel, said it would be “inaccurate” to characterize PPL’s services as check processing and basic accounting, and maintained that “the functions performed by (PPL) far exceed” those services.

However, with the exception of requirements to elicit feedback from participants in one program and to handle customer service calls in another, the tasks or requirements listed in PPL’s contractual Scopes of Work for Fiscal Years 2014 and 2015 all appear to be check processing, accounting, or website management functions.  When we had previously asked DDS for records showing or describing “all services provided to DDS by PPL” for fiscal 2014 and 2015, the Department referred us to the contractual Scopes of Work for those fiscal years.

Moreover, there were significantly fewer requirements listed in those Scopes of Work than in a Request for Response (RFR) issued by DDS to prospective bidders for a contract in 2008 for “fiscal intermediary services” for two of the self-directed services programs. PPL was selected in response to that RFR process.

The requirements in the 2008 RFR included helping program participants manage individual budgets for care.  Individual budgets are a key feature of self-directed services.  That requirement, however, was not included in either the 2014 or 2015 Scopes of Work.

In addition, a third self-directed services program appears to have been added since 2008 to PPL’s contract, potentially increasing the company’s fees; yet it does not appear that PPL was required to bid to become the fiscal intermediary for that additional program.  It also does not appear that the addition of the new program to PPL’s Scope of Work resulted in a net increase in PPL’s work requirements.

According to information on file on the state Operational Services Division website at, PPL has received administrative fees from DDS that grew from $529,435 in fiscal 2010 to $969,282 in fiscal 2014, an increase of over 80 percent.

Under the three self-directed programs, total state revenues processed by PPL increased by about 14 percent in that same time period. PPL processed about $14 million in state payments in Fiscal 2014, up from about $12.4 million in Fiscal 2010.

Meacham stated in her response that the contract with PPL incorporates all of the requirements in the original 2008 procurement solicitation. She did not address the apparent addition of the new self-directed services program to PPL’s contract without bidding.

Under self-directed or “person-centered” services, participants prepare “individual budgets” for care and services. Fiscal intermediaries are generally private firms that contract with the state to manage and direct payments from those individual budgets to service providers.

The stated goal of self-directed services is to give participants more choice and say in the care they receive.  In what appears to have been a key effort to expand those programs, the Legislature passed the ‘Real Lives’ law last year, which appears to formalize the self-directed services process.

We have raised concerns, however, about the level of oversight of self-directed programs and whether the Real Lives law, in particular, will put too much decision-making power over an individual’s funds into the hands of private companies.

Traditionally, DDS itself has paid providers of direct-care and other services, and has managed those services in accordance with each client’s care plan, known as an Individual Support Plan (ISP).  While ISPs still govern self-directed services provided in the DDS system, DDS appears to have given up at least some of its traditional control over the funding of those services.

Meacham’s response stated that the federal government has encouraged states to develop self-directed services programs, and requires that payments for those services be made by a private fiscal intermediaries.  In 2008, DDS issued an RFR for fiscal intermediary services for two self-directed services programs in Massachusetts: the Adult Participant-Directed Program (PDP) and the Child Autism Spectrum Disorder program (ASD).

Subsequently, a third program, as noted, was added to PPL’s contract: the DDS/Department of Elementary and Secondary Education (DDS/DESE) home-based care program for children.

PPL was awarded the contract for the first two programs in 2008, and the contract has been extended each year since then.  Fiscal 2016 may be the last year of the contract before it has to be re-bid through a new RFR.

Under PPL’s latest contractual Scope of Work for the three self-directed services programs for fiscal 2015, PPL is responsible for performing the following functions:

  • Processing and sending checks to providers of services to participants in the self-directed services programs.
  • Maintaining invoices which document expenditures.
  • Maintaining a list of those providers and processing CORI or criminal background checks of providers in the PDP and ASD programs.  The Scope of Work states that the DDS/DESE program is excepted from this process.
  • Measuring performance of the providers, although the Scope of Work does not specify how that is to be done. The Scope of work referred to an “Appendix A” regarding “the performance measurements and performance measurement process.” However, no such appendix exists, according to a DDS assistant general counsel, who stated to us in an email that the reference to an Appendix A was inadvertent.”
  • Eliciting feedback on the PDP program from participants through focus groups and a yearly satisfaction survey.
  • Handling what are called “Tier 1” customer service calls and inform families and providers about forms and website processes for the DDS/DESE program.
  • Training designated DDS staff on forms and processes for the DDS/DESE program.

The 2008 RFR, which resulted in the ongoing contract with PPL, includes requirements similar to those above, but also has what appears to be a much more extensive list of requirements for the fiscal intermediary.  Those additional requirements in the 2008 RFR include “maintaining” individual budgets for participants and “helping participants manage their individual budgets.”  This includes monitoring the participant’s spending and assuring that spending is only for approved services.

Other requirements in the 2008 RFR that do not appear in either the 2014 or 2015 contractual Scopes of Work for PPL include the following:

  • Protecting program participants from abuse and neglect.
  • Hiring service providers and developing their contracts.
  • Serving as liaison between participants, their service coordinators, and service providers.
  • Assisting providers in qualifying for waivers under the federal Medicaid program for Home and Community Based Services.
  • Managing a network of Support Brokers, who are also hired to help participants manage their individual budgets and services.
  • Tracking all complaints from participants and reporting quarterly on those complaints to DDS.

In her response, Meacham stated that PPL does track all complaints from participants and does take actions to protect participants from abuse and neglect, although she didn’t specify what those actions are.  She also said PPL manages workers compensation policies and withholds state and federal taxes on behalf of program participants who hire caregivers out of their individual budgets.

Whether or not PPL’s contractual requirements have been reduced, it is apparently legal to negotiate a state contract with the winning bidder on an RFP to reduce work requirements; but a state contracting  guidelines document states that those reductions must be minor in nature.

In her written response, Meacham also contended that it was not accurate to state that less than 1,000 people currently participate in the three self-directed service programs.  However, Meacham’s response stated only that “over 300 families were enrolled as participants” in the ASD program in the last two fiscal years; that the PDP program “serves over 500 individuals” per year, and that the DDS/DESE program “has remained at a low level due to individuals not electing self direction.”

According to DDS information forwarded in March from state Senator Jenifer Flanagan’s office, a total of 784 people were self-directing their services in the DDS system.  DDS was projecting that that number would double over the next four years to 1,568.

According to the PPL Scopes of Work for Fiscal 2014 and 2015, PPL gets paid under each of the three programs in different ways:

  1. PDP program: PPL receives a monthly fee of 6 percent of consumer’s total self-directed budget allocation.
  1. ASD program: PPL receives $131.25 per member per month.
  1. DDS/DESE program: PPL receives 8 percent of funds expended under the program.

In the final analysis, PPL may be charging DDS the market rate in fees for the services it performs under its contract. But payments of close to $1 million a year in fees to one firm to process payments under three relatively small programs raise questions for us about the value and price of these fiscal intermediary services.

We think the federal government should re-examine the amounts states such as Massachusetts are paying for fiscal intermediary services and should assess whether those services could be provided more cost-effectively in house.

Redacted state report appears to clear hospital that failed to treat developmentally disabled man

May 18, 2015 1 comment

An investigative report by the Department of Public Health appears to have concluded that Lowell General Hospital was not at fault in the case of a developmentally disabled man who died after having been turned away twice by the hospital in 2012 without any significant treatment.

I’m using the word “appears” to describe the report’s finding because virtually all of the text was redacted in the version of the document provided to us last week by the DPH.  Even the date of the report could not be determined from the document.  We are asking the state Public Records Division to order the DPH to produce a more comprehensible version of the report.

As I previously reported, the 51-year-old man, whose name is being withheld, died in February 2012 after having been taken twice in two days to the Lowell hospital and sent away each time.

The man had been having difficulty breathing and was sweating profusely when he was taken to the hospital on both February 6 and 7.  On the morning of February 7, he was sent back by the hospital to the group home in which he was living with a prescription.  He died, apparently en route to the hospital, after staff in his group home called an ambulance for the third time on the afternoon of February 7.

The cause of death was listed on the death certificate on file in the City of Lowell as acute respiratory failure and aspiration pneumonia, which can indicate choking.  A death report form filed with the Disabled Persons Protection Commission stated that the man died after experiencing cardiac arrest.

The DPPC referred the case of the man’s death to the DPH, apparently because an allegation about improper care in the case involved the hospital and not the man’s group home, which is operated by the Department of Developmental Services.

It seems surprising that state investigators would find no problems with the policies or procedures of a hospital that apparently failed to provide any significant treatment to someone who subsequently died due either to choking or a heart attack.  Common sense would imply that something went wrong somewhere in the hospital’s procedures between the time the man first arrived at the hospital exhibiting signs of physical distress and his death the next day.  But if the state did find something wrong, it’s not evident in the version of the report we received.

In February of this year, we requested a copy of the DPH’s report on the case, but the Department denied our request, citing the deceased man’s privacy rights.  We appealed to the Public Records Division, which last month upheld our appeal, ordering the DPH to produce the report or explain why it was exempt from the Public Records Law.

As we have previously noted here, our interest lies in whether the DPH examined the adequacy of Lowell General Hospital’s policies and procedures for treating persons with developmental disabilities.  This case suggests to us that there may have been inadequate training of hospital health care personnel in the treatment of developmentally disabled persons.  The lack of such training has become an issue of concern to advocates for the disabled and to many policymakers.

Given the narrow scope of our interest, we indicated prior to the Public Records Supervisor’s ruling that we were open to accepting a redacted version of the DPH report that did not reveal the man’s name or medical information about him that might violate his privacy.  We said, however, that we would not accept a report that was redacted to such an extent that we were unable to substantively discern either its findings or the support for its findings.

Unfortunately, that is the case with the document we have received from the DPH.  The redactions in this report appear to go far beyond what might be construed to be medical files or information. It is impossible to tell from the document whether the Department investigated the hospital’s policies or procedures for treating individuals with developmental disabilities or whether the DPH examined the training of staff in that regard. It is also impossible to tell whether the report contained any recommendations regarding hospital policies and procedures.

(Again, feel free to review the DPH report yourself at this link.)

The only statements in the DPH report that were not redacted and that appear to be relevant to the investigation of the case are four apparent findings in what is labeled the synopsis on the first page.  But even those findings have been at least partially whited out so that they cannot be fully understood.  Those apparent findings are that:

1. There was an allegation that hospital emergency staff were “ill-equipped” to deal with something.  We don’t know what that something was because the language is redacted.  We assume it was the treatment of the developmentally disabled man.  However, due to the redaction, it was impossible to determine that with any certainty.

2. Based on a review of medical records and interviews with staff, “the allegation was determined not to be valid,” the report stated. There is no text in the document providing any support or reasoning for the finding.  The finding indicated that in addition to medical records, three other things were reviewed as well, but the list of those three things was redacted.

3. Based on a review of something else that was similarly redacted, “appropriate care was rendered.”  Again, no further support or information was given for this finding.

4. The hospital’s discharge plans “were appropriate and communicated to”…redacted.

That is the extent of the readable text in the report that appears to be relevant to the investigation.  The full report is apparently more than five pages long.  However, after a heading labeled “Survey findings” on page 2, the report is entirely blank with the exception of one partial sentence on page 5 that states: “Review of the Medical Screening Examination dated 2/7/12 indicated”…  The sentence breaks off at that point and there is nothing further in the document. February 7, 2012 was the date of the disabled man’s death.

In his April 29, 2015 order to the DPH to turn over the report to us, Public Records Supervisor Shawn Williams wrote that the Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records.  In addition, Williams’ order noted that it is the burden of the department that possesses the requested records to demonstrate the application of an exemption in order to withhold any of those documents.

In our view, the DPH has failed to comply with the letter or spirit of the Public Records Law, and has not met its burden of demonstrating that the wholesale redactions of the report were either necessary or complied with the requirements of the records law exemption.

We sent a letter last week to Williams and to another attorney in the Division who handled our case to let them know of the nature of the document the DPH produced.  We’re confident Williams will agree with us that the DPH needs to do better that what they have done in providing the requested report.

Federal government reviewing group home data in MA and two other states

May 11, 2015 3 comments

The Inspector General in the U.S. Department of Health and Human Services has spent the past two years conducting a review of data on abuse and neglect in privatized group homes in three states, including Massachusetts.

In an August 21, 2013 letter written to U.S. Senator Chris Murphy of Connecticut, HHS Inspector General Daniel Levinson said his office had begun to examine data on admissions of persons from group homes and “nursing facilities” to hospital emergency rooms in Massachusetts, Connecticut and New York.

We obtained Levinson’s letter from the IG’s Freedom of Information Act Division.  The letter promised to share the results of the IG’s findings with Senator Murphy’s office and left open the possibility of expanding the review.  But the letter provided no details on how the review might be expanded.

Senator Murphy, who requested in March 2013 that the IG investigate group homes for people with developmental disabilities, has not responded to numerous requests from us for comment on the IG’s review.

It is not clear when the IG’s examination will be completed.

Despite what appear to be significant limitations in the scope of the analysis, the IG’s review appears to constitute one of the few instances in which the federal government has investigated the privatized group home system of care in the U.S.  In contrast to that relative free ride given to the group home system, the federal government has filed dozens of lawsuits in recent years alleging substandard care in state-run, congregate-care facilities around the country.

There has been mounting evidence that abuse and neglect has been a continuing and growing problem in community-based, group homes.  The IG investigation was requested by Murphy in the wake of a series of articles in The Hartford Courant that documented dozens of deaths, injuries, and other problems stemming from inadequate care and supervision in group homes in Connecticut.

Murphy asked the HHS IG to “focus on the prevalence of preventable deaths at privately run group homes across this nation and the widespread privatization of our delivery system.”

In his August 2013 letter in response to Murphy’s request, Levinson stated that for Connecticut, Massachusetts, and New York, “we are analyzing data to identify instances when Medicaid beneficiaries were transferred from group homes or nursing facilities to hospitals for emergency treatment.  We are analyzing data by facility to determine whether certain facilities have excessive rates relative to those of their peers.”

Due to the way states collect the data, the IG’s analysis would include all Medicaid patients and not only those with developmental disabilities, Levinson said.

Given the vagueness of Levinson’s description of his office’s review, we have a number of questions about it. Levinson’s letter, for instance, didn’t specify what he meant by “nursing facilities,” and didn’t indicate which “peers” the emergency hospital treatment rates are being compared to. Are the group homes and nursing facilities being compared to developmental centers, for instance? It’s also not clear what the data will mean if it lumps together people with and without developmental disabilities.

Moreover, it is not clear whether the IG’s review has included data on actual deaths in group homes, which is what Murphy specifically asked the IG to examine, or whether the review has included differences in mortality rates of persons transferred from state-run to privately run care.  A number of studies have shown increases in mortality rates among those transferred individuals.

The VOR, a national advocacy organization for the developmentally disabled, pointed out in recent testimony to a congressional subcommittee that higher mortality rates have been documented in Virginia, Nebraska, Tennessee, and Georgia in the wake of the DOJ’s deinstitutionalization settlements.

Based on Levinson’s letter, the IG’s review also doesn’t appear to have covered issues such as the quality of care in general in group homes, and it does not appear to be concerned with financial aspects of privatized care.  All of those things are long overdue for investigations at both the federal and state levels of government.  In the meantime, the federal IG’s investigation appears to be at least a step in the right direction.

The federal government’s cruel pursuit of deinstitutionalization

May 5, 2015 7 comments

When is the federal government — particularly the Department of Justice — going to recognize or admit that deinstitutionalization of the developmentally disabled hasn’t worked as planned?

The DOJ seems to have closed its eyes to the realities on the ground in continuing to file lawsuits around the country to close state-run care facilities.  This has caused “human harm, including death and financial and emotional hardship,” according to information compiled by the VOR, a national advocacy organization for the developmentally disabled and a COFAR affiliate.

While the DOJ has not filed such a suit against the State of Massachusetts, that may be because the state has closed, or is in the process of closing, four out of six developmental centers that were in operation as of 2008.  But with two developmental centers remaining as well as other programs that the DOJ considers to be institutional, such as sheltered workshops, Massachusetts could well become a target for a lawsuit at any time.

The VOR filed testimony last month, urging a congressional subcommittee to adopt legislative language that would require the DOJ to do two very commonsense things before filing more lawsuits to close state-run facilities:

  • First consult with the residents or their legal guardians “to determine residents’ needs and choices with regard to residential services and supports,” and,
  • Second, do not “impose community-based treatment on patients who do not desire it.”  This second requirement is consistent with the 1999 U.S. Supreme Court decision in Olmstead v. L.C.

The DOJ’s continued pursuit of class-action litigation to close developmental centers and other facilities has led to the irony that those lawsuits are generally opposed by the families of the residents on whose behalf the suits are ostensibly filed. As U.S. District Court Judge J. Leon Holmes wrote in 2011 in dismissing a lawsuit brought by the DOJ against the State of Arkansas to close the Conway Human Development Center center there:

…the United States is in the odd position of asserting that certain persons’ rights have been and are being violated while those persons – through their parents and guardians – disagree. (U.S. v. Arkansas, June 8, 2011, dismissal order).

Judge Holmes’ decision noted that evidence in the case showed that the parents and guardians of residents of the Conway Center “are overwhelmingly satisfied with the services there and believe that the Center is the least restrictive, most integrated placement appropriate for their children and wards.”  Moreover, the judge’s decision stated that the weight of the evidence in the case failed to support the DOJ’s contention that care at the Conway Center was substandard.

The VOR notes that the DOJ’s Civil Rights Division has filed more than 45 legal enforcement actions in 25 states since 2009 to limit or shut down state care.  On a website listing all the litigation it has filed, the DOJ includes the heading “Olmstead: Community Integration for Everyone.”

It’s not true, though, that Olmstead requires community-based care for everyone.  The Supreme Court decision established a right to community-based housing and care only when:

1. The state’s treatment professionals have determined that community placement is appropriate,

2. Transfer is not opposed by the affected individual, and

3. The placement can be reasonably accommodated, taking into account the resources available to the state and the needs of others with mental disabilities.

Despite those clear conditions, the DOJ has plowed ahead with its community-integration lawsuits under the explicit assumption that all institutional care should be ended and everyone should be sent into community-based care, whether they want to go or not.

This viewpoint by the DOJ is a misinterpretation of the Olmstead decision, and it has had tragic consequences, according to the VOR.  The organization pointed out in its testimony that higher mortality rates have been documented in Virginia, Nebraska, Tennessee, and Georgia in the wake of the DOJ’s deinstitutionalization settlements.

Those problems have occurred because so many of the privatized group homes to which the people formerly in the state facilities have been transferred are poorly monitored and are afflicted by high turnover and poor training of staff.  Yet, that reality does not appear to have been recognized by the DOJ.

In Virginia, a state sued by the DOJ to close its state-run developmental centers, the risk of mortality for those individuals who left those centers was double that of those who stayed.

In Tennessee, DOJ lawsuits resulted in the closure of one developmental center in 2010 and the downsizing of two others.  In that state, deaths among people released from institutions nearly doubled between 2009 and 2013.  In addition, according to The Tennessean, a 2013 State Comptroller’s audit reported a lack of access to adequate medical and dental care, incarcerations, and hundreds of reports of abuse, and neglect and exploitation among the transferred developmental center residents.

In Nebraska, a 2014 monitoring team report found that of 47 persons considered to be “medically fragile,” who were transferred from a developmental center in 2009 as a result of a DOJ settlement, 20 (or 43 percent of them) subsequently died.

In Georgia, a 2010 a DOJ settlement agreement required the closure of all state-operated developmental centers and the transfer of 1,000 persons with developmental disabilities as well as 9,000 persons with mental illness from facility-based care.  In March, The Augusta Chronicle reported that of 499 individuals with profound developmental disabilities, who had been transferred from the state developmental centers under the DOJ settlement, 62 (or 12%) died unexpectedly.

The Augusta Chronicle article discussed the case of Christen Shermaine Hope Gordon, a 12-year-old girl who died in community-care after being transferred from the Central State Hospital in Milledgeville, GA.  The article recounted a litany of poor decisions and poor care that appear to have led to Christen’s death.

In a letter to the DOJ in January of this year, Margaret Huss, president of Intellectual Disabilities Advocates of Nebraska, urged the DOJ to ask critical questions about the mortality figures and other data regarding the transfer to community-based care prior to filing further lawsuits to close state facilities.  “An increased risk of death should not be the unintended consequences of the worthy goal of community integration,” Huss’s letter stated.  As of May 1, the DOJ had not responded to her letter.

That an increased risk of abuse, neglect, and death exists in community-based care has long been recognized, but few policy makers or people elected to office have been willing to stem the tide of deinstitutionalization.  In March 2013, U.S. Senator Chris Murphy of Connecticut did call for an investigation of abuse and neglect in privatized group homes around the country, in response to a series by The Hartford Courant detailing those problems in that state.

In a letter to the Office of the Inspector General in the U.S. Department of Health and Human Services, Murphy termed the level of abuse and neglect in group homes “alarming.”  Murphy asked the IG “to focus on the prevalence of preventable deaths at privately run group homes across this nation and the widespread privatization of our delivery system.”

But more than two years after Murphy’s request, it is not clear that the HHS Inspector General ever did undertake such an investigation.  The IG’s office has so far not released a report and did not respond to an email query from us on April 30, seeking information on whether an investigation has been undertaken and what its status might be.

Senator Murphy’s office also did not respond to repeated inquiries from us last week as to whether Murphy ever received a response from the IG to his call for an investigation or whether he ever followed up with the IG after his original request in 2013.

Unfortunately, lawmakers in the U.S. Senate, in particular, have also not been supportive of VOR’s proposed legislative language to require the DOJ to consult with families before filing further lawsuits against state care.  While language was inserted in a House appropriations bill for the DOJ last year at VOR’s request that protections for institutional care be considered by the DOJ as appropriate for those who desire it, that language was later watered down.

We can only hope that folks begin to wake up in Washington and elsewhere to overwhelming evidence that deinstitutionalization accompanied by privatization is not working, and that someone finally steps forward to slow both of those trends.

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