This is a statement sent out by the Family Care Council:

Statement by APD Director Jim DeBeaugrine on Court Decision on Tier Rule

Tallahassee – Today the First District Court of Appeals issued a ruling determining the tier waiver rule to be invalid.

APD will thoroughly review the opinion issued by the First District Court of Appeals to determine which options will best preserve the benefits of our customers. Options include seeking rehearing, appealing to the Florida Supreme Court, and an internal review of the rule.

“The top priorities of the Agency for Persons with Disabilities are the health and safety of the people we serve. We will continue to try to meet the needs of our customers while adhering to the mandatory requirements of the tier waiver statute,” said Agency for Persons with Disabilities Director Jim DeBeaugrine.

The agency annually serves about 35,000 Floridians with developmental disabilities of mental retardation, autism, cerebral palsy, spina bifida, and Prader-Willi syndrome. For more information on the agency, call 1-866-APD-CARES or visit www.APDCares.org.

Breaking News

Appeals Court Rules Tier Rules are Invalid

The First District Court of Appeals in Tallahassee, Florida ruled today that the Tiers for serving Persons with Disabilities are invalid. Please see the attached link for the ruling.

http://opinions.1dca.org/written/opinions2009/08-21-2009/08-4353.pdf

 

This is information obtained from the Family Care Council that should help when meeting with Legislators. 

Florida  Waiver Data – 7/09

29,836 People receiving services

          – Tier 1: 3,602

          – Tier 2: 3,798

          – Tier 3: 5,539

          – Tier 4: 12,731 – Roughly half

          – TBD: 3,394

About 3% are on CDC+

 

Waiver Services by Age – 7/09

Tier/Age              3-5              6-22           23-30         31+             Total

T1                          0                836               910         1856                    3602

T2                          0                467               619          2712          3798

T3                          0                520             1165          3854          5538         

T4                          5              5473             2451          4802        12731         

TBD                      1                480               693          2220          3394                            

Total                 6          7,776          5838     15,444     29,064       

Wait List July 2009

  • 18,972 People on the Wait List in Florida as of July 2009
  •  Ages 3-5: 676
  • Ages 6-22: 11,225
  • Ages 23-30: 3,519
  • Ages 31+: 3,552
  • Average cost per month to provide waiver services is $70,210,603.95 which is about $28,000 per year per individual
  • About $100M of state funds required to support all of those over the age of 22 assuming matching Fed. Funds

Total Florida budget is about $67 Billion

This is an article that came from The Tampa Tribune.  Because Ms. Dolinski said it much better than I could, I’ve reprinted her entire article.

By CATHERINE DOLINSKI | The Tampa Tribune

Published: July 3, 2009

TALLAHASSEE – Last fall, 5,555 Floridians with developmental disabilities and their families appealed spending cuts or other changes to the services they receive through a state Medicaid program.

The state Agency for Persons with Disabilities granted formal hearings in only 771 of those cases. So far, only one family has prevailed in its case.

That worries Yvonne Mason, of Seffner, who is awaiting an August hearing to appeal a 42-percent cut in funding for services and care of her adult son, Sean. “That’s disheartening,” she said. “I would have expected better numbers.”

Sean, Mason’s 39-year-old son who lives with her, has been diagnosed with autism, schizophrenia and intellectual disabilities. His mother, who is 70 and suffered a minor stroke four years ago, said she may not be able to continue caring for him if the state refuses to raise Sean’s spending level.

“I think I have a very good case,  but seeing this, you feel like you can’t fight City Hall,” she said. “I hear they have excellent lawyers.”

From the disability agency’s perspective, the low number of successful appeals only proves it is doing its job.

House and Senate lawmakers directed the agency in 2007 to divide beneficiaries of the Home and Community Based Services program into spending tiers, based on their needs and circumstances. The agency was facing a deficit of about $155 million at the time, and lawmakers passed the tough new reforms in an effort to bring the disability agency’s wallowing budget back into balance. On Thursday, preliminary estimates showed the deficit hovering around $12 million due to a variety of cost-cutting measures.

The 2007 legislation provided for an appeals process for beneficiaries to challenge their tier assignments “ but only to determine whether or not APD implemented the Legislature’s mandate correctly.”

APD director Jim DeBeaugrine said he understands why families may feel discouraged by the low success rate of appeals. “But it’s an indication that we have been very, very careful,” he said. “We have double-checked everywhere there’s even been a hint that there may be something wrong. I told our employees and our legal staff that we’re not going to take anything to a hearing unless we’re completely convinced we’ve done it right.”

That’s cold comfort for parents like Mason, who fear what the agency’s spending cuts mean for their children. But a closer look at the appeals process may offer more hope.

Of the 771 appeals that APD approved for review, 621 have not even reached the Division of Administrative Hearings yet. That’s because APD relies largely on lawyers in the Attorney General’s office to represent them at the hearings, and their capacity to process the requests has been limited. To date, only 60 hearings have been held, and hearing officers have released findings in only 14 of those cases so far.

Meanwhile, APD is preparing to notify 175 beneficiaries that the agency has reassigned them to new spending tiers. The agency expects that many of those families will drop their appeals as a result.

Attorneys for APD also noted that of the initial 5,555 challenges from families, 455 were dropped “ in most cases, prior to the agency determining which merited hearings. APD attorney John Newton said that half of all people who filed appeals would not actually have experienced a cut in services, because their tier assignment actually covered what they were already spending.

Rep. Juan Zapata, who chairs the House Human Services budget committee, blamed the volume of initial appeals largely on “scare tactics” by providers like fearing loss of income. The program covers a wide range of services to help with beneficiaries and families with daily life, from regulating diet and monitoring medication to bathing and housekeeping.

“Every time we put cost containment in the process, we get a lot of pushback from providers; they scare the families,” said Zapata, R-Miami.

But eventually, Zapata said, a more consumer-directed approach may provide a better long-term solution.

At DeBeaugrine’s urging, lawmakers inserted language in the 2009-2010 budget directing APD to devise a new system that would customize individual budgets for each beneficiary, based on his or her particular circumstances. Families, most likely in consultation with a professional support coordinator, would decide for themselves the best way to spend the money. Lawmakers have asked APD to submit the new proposal by Feb.1, 2010.

“We’ll be putting the individual, as much as possible, in charge of their own lives, making their own decisions.” said DeBeaugrine, adding that, In time, it might replace the tier system altogether.

“After putting people through all of this?” Mason asked. “But he’s right, I do think this is the only way to go. It makes perfect sense; anyone can relate to that, customizing it to the person. I think DeBeaugrine is the only person who makes any sense.”

Reporter Catherine Dolinski can be reached at (850) 222-8382.

This is a comment from gbear I received the other day regarding support coordinators and an article that was reprinted about the current stranglehold on lawsuit again APD:

Sad, why would the state hire individuals as support coordinators who don’t know how to write an appropriate support plan? Seems it would be more cost effective to hire individuals who know how to identify needs, Case Manage, access other funding resources if needed etc. vs having other staff tell them how to do their jobs. It seems that if the state would decrease the number of staff who do not perform or know how to do their jobs, salaries and benefits could be utilized for actual services to the community.

Here is my comment:

Yes. It does seem sad. In defense of support coordinators, many of them are very good. But to use the words of the best support coordinators I know about, “Too many of them are down right lousy.”

The state give support coordinators at least a week of intensive training. Prior to that, they must have at least 2 years working with people who are mentally challenged. After that they have annual audits. However, the state has lawyers and CPA’s who work with them. No support coordinator is trained to handle this kind of expertise.

With that said, it is the JOB of a support coordinator to at least learn how to write a successful support plan. If your aren’t getting the kind of services that you think you need, check with other parents who are in Tier 4. Find out who they are using to write their support plan. Ask them if they will seek training from that support coordinator. If they won’t compley with your wishes, then you be pro active. Either switch SC’s to one who will be effective for your child or ask to pay for training from the support coordinator who is effective and them you train your SC to do his/her job more effectively.

 Memo from Carolyn Smith

727-546-5568

carolynsmithgroup@verizon.net

Of great concern is 65G-4.0021(1)(a) which states level of need, medically, is reflected in the cost plan, i.e., the waiver cost plan, which does not provide any info on “medical spending/costs” which are mostly paid for under Medicaid.

 

The APD contact person regarding the proposed rule is Mike Dunn, Deputy Dir. of Legislative Affairs, 850-414-5853

 

Rule General Provisions,  Rule Detail  and Operational Detail

Tier 1—65G-4.0022  The client has service needs for intense medical or adaptive needs that cannot be met in Tiers Two, Three, and Four and services are essential for avoiding institutionalization.  The client possesses behavioral problems that are exceptional in intensity, duration, or frequency with resulting service needs that cannot be met in tiers Two, Three, and Four, and the client presents a substantial risk of harm to themselves or others.
□       Clients living in a licensed residential facility receiving Special Medical Home Care.□       Clients living in a licensed residential facility receiving intensive behavioral residential habilitation services.

□       Children and adults receiving behavior focus res hab services at the current “moderate level or above”, (or 7 or more hours a day based on the previous rate table.)

□       Clients living in a licensed residential facility receiving Standard residential habilitation at the extensive 1, or higher, level of support (10 or more hours a day based on the previous rate table.)

□       Nursing service needs that can be met through the Tier Two, Tier Three, or Tier Four Waivers are not “services” or “service needs” that support assignment to the Tier One Waiver.□       Anyone 21 or over receiving continuous nursing services and annual cost plan for all services exceeding $55,000. (Intermittent nursing services do not qualify.)  Continuous nursing is defined as 4 or more hours of nursing a day. (Note:  Skilled nursing is considered intermittent nursing.)

 

□       Anyone 21 and over receiving personal care assistant services at 180 hours or more a month and total annual cost plan for all services exceeding $55,000.  (The person must be approved for intense PCA services only per the statute and the handbook.)□       Adults (18+) with supported living coaching, in-home supports (quarter hour or live-in), approved cost plan over $55,000, and any one of the following therapies: physical therapy, occupational therapy, respiratory therapy, or behavior analysis.

□       Anyone 21 or older living in the family home with combined Behavior Analysis Services and Behavior Assistance services of 60 or more hours per month AND total annual cost plan for all services exceeding $55,000.

 

TIER 2—65G-4.0023  The total budget in a cost plan year for each Tier Two Waiver client shall not exceed $55,000.
The client’s service needs include placement in a licensed residential facility and authorization for Residential Habilitation levels of support as identified in column 2. 

Individuals living in their family home are excluded from this Tier at this time.

 

□       Adults or children receiving standard Residential Habilitation at the moderate level of higher who do not meet the criteria for Tier 1, or 

□       Adults or children receiving Behavior Focus Residential Habilitation services at the minimal level or higher who do not meet the criteria for Tier 1.

 

□       Adults or children receiving Live-in Residential Habilitation services in a home licensed for 3 or less people.  (Live-in is 8 or more hrs. a day.)

 

 

□       The client is in supported living and is authorized to receive more than six hours a day of in-home support services. 

This includes all individuals who receive the in-home live in rate and meet the daily limit of 6 or more hours, as well as those who receive the quarter hr. rate that meets the criteria. (In-home live in is 8 or more hours a day.)

 

TIER 3—65G-4.0024  The total budget in a cost plan year for each Tier Three Waiver client shall not exceed $35,000.
□       The client is receiving residential habilitation services at the daily or monthly rate at the basic level or higher and is not eligible for the Tier One Waiver or the Tier Two Waiver.  (Standard Basic or Minimal levels.)□       The client is 22 or older and is authorized to receive services of a behavior analyst and/or a behavior assistant.

□       The client is under the age of 22 and authorized to receive the combined services of a behavior analyst and/or a behavior assistant for more than 60 hours per month and is not eligible for the Tier One Waiver or the Tier Two Waiver.

□       The client is 21 or older, resides in their own home and receives In-Home Support Services and is not eligible for the Tier One Waiver or the Tier Two Waiver or the Tier Four Waiver.□       The client is 21 or older and is authorized to receive Skilled or Private Duty Nursing Services and not eligible for the Tier One Waiver or the Tier Two Waiver.  (Client receives Skilled (intermittent) nursing services or other Nursing services of less than 4 hours a day.)

 

□       The client is 21 or older and is authorized to receive Personal Care Assistance services at the moderate level of support as defined in the DD Handbook.□       The client is 21 or older and is authorized to receives Personal Care Assistance services at the Standard level of support and does not meet the criteria for placement in Tier 1, or Tier 2.

□       The client is 21 or older and is authorized to receive Occupational Therapy.

□       The client is 21 or older and is authorized to receive Physical Therapy.

□       The client is 21 or older and is authorized to receive Speech Therapy.

□       The client is 21 or older and is authorized to receive Respiratory Therapy.

 

TIER 4—65G-4.0025  The total budget in a cost plan year for each Tier Four Waiver client shall not exceed $14,792.
□        Clients who are not eligible for assignment to the Tier One Waiver, the Tier Two Waiver, or the Tier Three Waiver shall be assigned to the Tier Four Waiver. □       Clients who are currently assigned to receive services through the Family and Supported Living Waiver unless there is a significant change in condition or circumstance as described in subsection 65G-4.0021(4), F.A.C.  □       Dependent children in need of in-home support services through APD who live in a DCF licensed group or foster home under Section 409.175 F.S.. □       Clients who are under the age of 22 and residing in their own home or the family home except for those who have moderate or extensive behavior support needs that are more intense than the Tier level can accommodate.

This is information I received in an e-mail this week.  It concerns APD reductions that will go into effect.  The concern is where to cut and how much from where.  Not will there be additional cuts. Some of it will be confusing.  I cannot copy the original attachment referred to in the e-mails.  However, I can forward it to you if you contact me at lhoward@specialgatherings.com.

(Formating note:  some of this is in bold type.  That is because I cannot get it to become normal print.  It is not for emphasis.  Thank you.)

I do not know if you have seen this e-mail but the attachment seems to be what was presented to the legislators. Sorry but  I cannot seem to get out of it current format and into this entry.  If you desire to receive this attachment e-mail me at lhoward @specialgatherings.com

# 7 on the attachment is confusing.  It appears (and I have heard Jim DeBeaugrine say) that we are going to group a lot of the service into one category.  This seems to means the state will have one service that can be used for ADT, in home supports, companion, etc.  If that is correct how does this interact with the 30 hrs a week limit on meaningful day activity?

How is # 13 different than #7?  Changes in supportive living is a concern.  The state encouraged people to move into independent settings promising to provide needed supports that we are now messing with. 

Is #15 just saying that we do not know where 59 million (over 50% of the cuts) are coming from?

Maybe I do not understand what I am reading.  I am looking for help here.

Thanks

  Original e-mail said

FYI-Attached the APD budget reduction exercise of today that all state agencies had to submit. Many of the same issues that have been on the reductions sheets are still on this one.  A summary of the reductions is as follows, see the attached for details:

BettyKay

 Reductions necessary to meet target………………………………………36,472,253

Balance of headquarters reductions…………………………………-439,030

Balance of Area office reductions………………………………..…..-109,190

·         Budget reduction in special categories…………………………….-1,359,557

·         Consolidate durable and medical equipment…………..………….-1,864,185

·         Eliminate behavior assistant servcies in group homes…………..-4,000,000

·         Reduce CDC accounts by 10%……………………………………..-3,286,586

·         Consolidate meaningful day activities and reduce by 8%…………-21,584,922

·         Cap Tier 1 at $120,000……………………………………………….-11,198,958

·         Eliminate Behavioral Therapy Assessments in Waivers…..-447,754

·         Eliminate Medication Review in Waiver………………………………………..—402,543

·         Eliminate specialized mental health assessment services in waiver………..-95,023

·         Eliminate specialized mental health therapy in waiver…-604,732

·         Redesign supported living program to reduce duplication……….-2,200,000

·         Redesign level of supported employment for recipient

                       with history of employment stability………………….-2,054,098

·         Further reductions to waiver services………………………………………-59,073,558

·         Subtotal Reductions (Annualized)…………………………………………-108,720,136

Most of these are repeat line items from previous presentations, they go beyond what the target was and Director DeBeaugrine did not recommend implementation of most of these.