Michigan groups sue to "Stop the Hamster Wheel" - Medicaid hearings that are never resolved due to lack of adequate funding

A press release from three legal advocacy groups, Including Michigan Protection and Advocacy Services (MPAS), alleges "Systematic Due Process Violations in Michigan Medicaid Program":

...Lansing, MI – Medicaid recipients have long had rights to “fair hearings” to challenge actions affecting their benefits. According to a new lawsuit, however, recipients in Michigan cannot get relief from those hearings, even when they win.

The suit, filed by attorneys for Michigan Protection & Advocacy Service, Inc. (MPAS), the National Center for Law and Economic Justice (NCLEJ) and Legal Services of South Central Michigan (LSSCM), says that the administrative law judges (ALJs) presiding over fair hearings lack the power to order the agency to grant the benefits it had wrongfully denied. All they can do is send the case back to the agency to “reassess” the recipient. And when the agency comes back with the same decision on reassessment—as it often does—all the recipient can do is ask for another fair hearing, where the same thing will happen again. This is the Michigan Medicaid “Hamster Wheel”: recipients run and they run and they run, but they never get anywhere.

Named Plaintiff Kevin Wiesner lives with various disabilities, and he relies on Medicaid-funded community living supports (CLS) to stay in the community. In 2019, he challenged the CLS budget provided by Washtenaw County Community Mental Health (WCCMH), and the ALJ held in his favor in every respect: The budget was insufficient to meet Kevin’s medical needs, it had been insufficient since at least 2015, and at least a certain, specific amount was required to make it sufficient. But the ALJ did not—because he said he could not—order a budget of that amount. Instead, he told WCCMH to “reassess” Mr. Wiesner’s needs. To no one’s surprise, WCCMH’s “reassessment” ignored the ALJ’s determination and denied Mr. Wiesner any increase at all.

“For more than 50 years, the Constitution and federal statutes have guaranteed public benefit recipients the right to an impartial determination of their benefits,” said Ed Krugman, a senior attorney at NCLEJ, “The Michigan Hamster Wheel makes a mockery of that right. Kevin Wiesner fought for the services he needs, and he won, but he got precisely nothing. That is a travesty.”

“The Medicaid Fair Hearing System is supposed to give recipients the right to challenge actions that negatively affect their benefits,” said Kyle Williams, legal director for MPAS. “If administrative law judges are only allowed to order reassessments, they can never win those challenges, because the reassessment decision is ultimately in the hands of the agency that took the negative action in the first place.”

Nick Gable, attorney for LSSCM, offered a similar thought. “The Medicaid fair hearing “Hamster Wheel” has been a problem for years, to the point that appeals challenging personal care or home and community-based support services denials are rendered futile. A legal challenge to the Hamster Wheel is overdue.”

The suit names WCCMH, Community Mental Health Partnership of Southeast Michigan, their directors, and Michigan Department of Health and Human Services Director Robert Gordon as defendants. The requested relief seeks to end the practice of ALJs remanding cases without ordering specific relief for Medicaid recipients.

Michigan Protection and Advocacy Service, Inc. (MPAS) is the independent, private, nonprofit organization designated by the governor of the State of Michigan to advocate and protect the legal rights of people with disabilities in Michigan.
www.mpas.org

Since 1965, the National Center for Law and Economic Justice (NCLEJ) has worked with low-income families, individuals, communities, and a wide range of organizations to advance the cause of economic justice through litigation, policy work, and support of grassroots organizing around the country.
www.nclej.org

Legal Services of South Central Michigan provides free legal advice and representation to low-income individuals, families, and older adults.
www.lsscm.org

###

For more information, contact:

Mark McWilliams
mmcwilliams@mpas.org

or Edward P. Krugman

krugman@nclej.org

Kerry Kafafian [kerrykafafian@gmail.com ], Kevin's mom, is also willing to provide more information about the lawsuit.

Abelone Kelley July 06, 2020 0

Michigan Update on Covid-19 Policies and More...

The ARC Michigan is the largest organization in the state advocating for people with developmental disabilities. As the parent of two sons with profound intellectual and developmental disabilities (IDD), I often disagree with the policies the organization has promoted over the years that ignore the real-life consequences of severe disabilities on the individual and his or her family. Along with many other disability advocacy organizations, the Arc attempts to promote public acceptance of disabled individuals by painting a rosy and unrealistic picture of life with a disability and applies it to all who fall under that category. I do give them credit, however, for making available information that individuals and families need to participate in effecting change in government policies.

The ARC Michigan e-newsletter update has timely information on legislation, other state and national policies, and recent court decisions affecting people with IDD. The archives for the newsletter are available on the website. You can also sign up to receive the newsletter by e-mail.
 
This is from the May 29, 2020, Government Affairs Update from RWC Advocacy, A Governmental Affairs Law Firm in Lansing, Michigan:

Emergency Authorities & COVID-related Legislation

The Michigan House of Representatives has yet to take action on Senate Bill 690, which provides $523 million in supplemental appropriations for Fiscal Year 2020 from the federal coronavirus relief fund for various purposes, most notable of which is the inclusion of a $3/hour increase for direct care worker wages. [emphasis added] We can likely expect the supplemental to move the first week of June.

[This appears on page 11 of the bill: DEPARTMENT OF HEALTH AND HUMAN SERVICES

Section 451. (1) From the funds appropriated in part 1 for pay enhancement for direct care workers, the department of health and human services shall provide sufficient funding to increase the wages paid to direct care workers described in subsection (2) by $3.00 per hour above the rates paid on March 1, 2020 retroactive to April 1, 2020 through September 30, 2020.
(2) The direct care wage increase shall be provided to direct care workers employed by the department of health and human services, its contractors, and its subcontractors who received a state-funded wage increase in April 2020. The total combined increase from the April 2020 wage increase and the wage increase outlined in this section shall be $3.00 per hour and shall be in effect from April 1, 2020 to September 30, 2020.
(3) A direct care wage increase of $3.00 per hour shall be provided to direct care workers employed by skilled nursing facilities, retroactive to April 1, 2020 and shall continue until September 30, 2020.
(4) Contractors and subcontractors receiving funding to support these pay enhancements shall be required to provide documentation of the wage increases provided pursuant to this section to the department of health and human services.
(5) Any payment enhancement above the hourly rate in effect on March 1, 2020 shall be of no effect in determining any employee's average compensation as provided by any contract or other provision of law...]
 
[The bill is 18 pages long and contains funding information on many other departments of state government. To find out more, read the bill.]
 
Stay Home, Stay Safe 

On Thursday, May 21, Governor Whitmer announced that she signed another iteration of the Stay Home, Stay Safe order – Executive Order 2020-96 – reaffirming the measures set forth in the previous order but taking the following new actions:

• Repeal of Executive Orders 2020-17 and 2020-34, which imposed a prohibition on elective dental, medical and veterinary services statewide, beginning on Friday, May 29 at 12:01 a.m.
  
• Allowing statewide reopening of auto showrooms, by appointment only, on Tuesday, May 26.
  
• Allowing statewide retail, by appointment only, starting on Tuesday, May 26. Stores will be limited to 10 customers at any one time.
  
• Allowing statewide gatherings of 10 people or less are allowed, but necessary health and safety measures should be used.
  ...

...Executive Authority Lawsuit
 
Judge Cynthia Stevens issued a ruling in the Michigan Court of Claims on Thursday, May 21 in Michigan House v. Whitmer upholding the Governor’s authority to declare a state of emergency under the Emergency Powers of the Governor Act of 1945. However, the judge also ruled that the Governor could not declare a state of emergency and disaster declaration under the Emergency Management Act of 1975 without legislative intervention.
 
[The Governor also has authority under the Emergency Powers of Governor Act of 1945 that does not require the intervention of the legislature.]

See more about Medicaid funding and the legislative attempt to direct funds from recent federal legislation to help the state get through the financial disaster that the corona virus has created.

Abelone Kelley June 01, 2020 0

Washtenaw County: Notes on the WCCMH Board Meeting for 5/17/19

I apologize for the use of so many acronyms, but I have tried to make sure to explain what they stand for at least one time for each. This is typical of administrative meetings where the acronyms fly fast and furiously. Their use is an understandable convenience for the people involved, but when they go unexplained, they add to the confusion of innocent bystanders.

Washtenaw County Community Mental Health (WCCMH) Board meetings are usually held on the third Friday of the month from 9:30 to 11:30 a.m. at the Learning Resource Center (LRC), 4135 Washtenaw Ave, Ann Arbor, MI 48108. Board materials for the 5/17/19 meeting are posted on line.

The current financial status report included a discussion of the continuing problem with the mysterious “migration” of consumers [clients of WCCMH] from regular Medicaid that covers DABS - people who are Disabled, Aged, and Blind - to the Healthy Michigan Plan (HMP). HMP is Michigan’s version of Medicaid expansion under Obamacare. Medicaid reimbursement rates to CMH for services are much lower for the HMP than for regular Medicaid. Later in the meeting, this came up again - when someone who has “migrated” to the HMP is re-identified as a DAB, there is no retroactive compensation to CMH for lost funding. Also, when someone is part of the HMP, they are limited to 3 years on that plan and a work requirement has been added for many of its beneficiaries. 

During the Executive Director’s report, an observation was made that 20 years ago CMH decided to “philosophically” oppose group homes in favor of supported living in one’s own or family’s home with an emphasis on “self-determination”. There are still group homes - my sons live in one of them. In my opinion, having decisions based on a philosophical argument from a public agency rather than on individual need is a mistake that is detrimental to people with DD and their families. “Self-determination” as a method of delivering services, can be helpful to people with DD, even for people with severe intellectual disabilities who are under guardianship, but often it is not. It sometimes amounts to a shift in responsibility, from the public agency to the family, for finding and supervising services. Adding these administrative burdens to the already relentless task of caring for someone with a severe disability can be crushing. “Self-determination”, in the usual meaning of having control of one’s life, is not always achievable, especially for someone with severe intellectual or behavioral disabilities.

The Community Mental Health Partnership of Southeast Michigan (CMHPSM) is the regional administrative agency that passes Medicaid funds from the state and federal government to a four-county area in Southeast Michigan. The CMHPSM is improving its administrative functions and is seeking a permanent Executive Director. It is also dealing better with personnel issues than had been previously reported. 

A presentation was given on the Direct Care Worker crisis by CMH staff and Scott Brown from Renaissance Community Homes. A Power Point presentation  accompanied a report called “Deconstructing the Direct Care Service Crisis” concerning a proposal to implement recommendations made three years ago by a legislative workgroup to improve wages and working conditions for direct care workers that was largely ignored by the state. The presentation emphasized how the crisis undermines care and support to CMH consumers and is imposing extraordinary costs on provider agencies causing many of them to go out of business.

I will be discussing these proposals in a future blog post.

***************************
At the June meeting of the WCCMH, there will be a discussion of services for people with developmental disabilities: 

June 21, 2019 
4135 Washtenaw Ave, LRC Room Michigan 9:30-11:30am
Ann Arbor  

Abelone Kelley May 29, 2019 0

Washtenaw County: Notes on the WCCMH Board Meeting for 4/19/19

Washtenaw Community Mental Health Board meetings are usually held on the third Friday of the month from 9:30 to 11:30 a.m. The timing alone may explain why there are so few members of the public who attend the meetings or take the opportunity to speak to the Board during the time set aside for public participation. Most of the attendees are Board members, WCCMH staff, or people who have been invited to talk to the Board on specific topics. 

At the WCCMH Board meeting on April 19, 2019, there were at least half a dozen members of the public who made comments during public participation, many of whom had participated in state House budget hearings on 4/11/19 in Lansing. Those hearings can be viewed on Michigan House TV. 

The April 11th Agenda for the House Appropriations Subcommittee on Health and Human Services included an Overview of the FY 2019 - 20 Executive Recommendation for Behavioral Health and State Hospitals by the DHHS (Department of Health and Human Services) and Public Testimony on the DHHS Budget Recommendation. Public comments begin at around 1 hour and 10 minutes into the video. There were a number of commenters from Washtenaw County, most speaking about the benefits of services for people with severe mental illness and a few representing people with developmental disabilities. A provider of services who is also a parent, said that Monroe CMH is far behind in reimbursing providers like himself for services and that this has a domino effect on families, clients, and employees. Some spoke against the privatization of mental health services and others bravely spoke of their experiences with severe mental illness and surviving seemingly hopeless situations, including childhood sexual abuse.

The agenda and other materials for the 4/19/19 Board meeting are available on the Washtenaw County website. The public part of the meeting was cut short for a closed session to discuss pending litigation that challenges the State’s underfunding of Community Mental Health agencies. As I understand it, these agencies are put in the position of having to either cut services that they are mandated to provide or to violate mandates against budget deficits that they are unable to cover with funding reserves because they have been depleted by underfunding. In current state budgets, there has been a slight increase in general appropriations that can include spending on services to people who are not eligilble for Medicaid.

A notable development is that Jane Terwilliger has resigned as the Executive Director of the 4-county Community Mental Health Partnership of Southeast Michigan (CMHPSM). This followed the results of a survey that was highly critical of her performance. The COO (Chief Operating Officer) is now heading the organization and there will be a search for a new Executive Director.

Another part of the meeting focused on Board Committee structure and planning for services funded by the 2017 Washtenaw County millage to improve mental health services and safety. As I have said before, my interest is usually in subjects connected with services to people with intellectual and developmental disabilities. If you are interested in how the WCCMH is funded and spends available resources, the Agenda package includes detailed financial information on this subject.

Abelone Kelley May 07, 2019 0

Wayne County, MI, Advocates for IDD: Workshops on Medicaid, employment, and housing

This is an announcement of events in Wayne County, Michigan, from parent/advocate Ed Diegel:

During the last several election cycles I heard only Barack Obama mention that in addition to providing Medical services to the needy, Medicaid also provides funding for the intellectually and developmentally disabled, the mentally ill and persons suffering with substance abuse. Furthermore, in my state district during the 2018 election,  the Michigan Republican Party flooded the district with fliers suggesting that extending Medicaid would only extend Medicaid fraud, inferring in effect that all Medicaid recipients are lazy and fraudulent. 

My friends, it is you and I who are responsible for allowing politicians and our friends and neighbors to harbor the idea that Medicaid is BAD. We need to do a much better job of being honest and effective and speaking out about the tremendous benefit to our individuals and communities that this program delivers. In addition there are issues being discussed in Lansing and Washington that have potentially severe impacts across the board and specifically on funding and on group home and workshop settings that need our attention.

Community Opportunity Center together with STEP and MALA is sponsoring the legislative issues and advocacy training workshop described below. Persons ready to speak up are encouraged to sign up for the workshop. Position papers of current issues, tips on effective lobbying and legislator town hall and in district coffee schedules will be provided.

Two workshop dates are available. Please see the following for detail:

++++++++++++++++++++++++

You Are Encouraged To Attend A Family Advocacy Training Session

Sponsored by: Community Opportunity Center and Services to Enhance Potential

Two Sessions Offered:

February 12, 2019 5pm-8pm

February 16, 2019 10am-2pm

Location: Community Opportunity Center
14147 Farmington Rd., Livonia, MI 48154

Educating legislators about the importance of Medicaid funding and about the needs and circumstances of our loved ones is essential if we wish to influence legislation and funding sources for their benefit. Issues related to housing and employment are under review and new legislation has been created at the federal level, which may have an impact on services our loved ones receive. For this reason, COC and STEP would like to meet with interested families and other support persons to discuss these issues and create an advocacy group, which in turn can share information with local, state, and Federal legislators regarding the impact of these legislative changes. 

If you wish to attend one of these sessions and to learn more about these issues, please contact Joyce Franks at, 734-422-1020 or jfranks@cochomes.net by Friday February 8, 2019. 

+++++++++++++++++++++++

Thanks, I hope to see you at the session. It's up to us to spread the word!!! 

Ed Diegel,

Advocates for Persons with Developmental Disabilities in Wayne County.
ddadvocates@gmail.com

Abelone Kelley February 04, 2019 0

Michigan: Law affecting minimum wage and sick leave is undermined by lame duck legislature

December 3, 2018

What the legislature giveth, the Lame Ducks taketh away...

The Michigan Community Mental Health system that provides services to people with developmental and other disabilities is in a crisis caused in part by the low wages of direct service professionals who provide care to people with disabilities. Whether an individual lives in a licensed setting or unlicensed home of their own or shares a home with others or with their family, the help they need to survive is often provided by a caregiver paid for by Medicaid.

Before the November 2018 election, hundreds of thousands of signatures were gathered to support a ballot initiative that would raise the state’s minimum wage to $12/hour by 2022 and allow employees to accumulate sick leave of 1 hour for every 30 days worked. The ballot initiative proved to be extremely popular which prompted the legislature to pass a law that would do exactly what the ballot initiative would do, but with the intention of amending the law during the lame duck session to scale way back on its requirements. This is exactly what happened. A bill scaling back the promises of the ballot initiative has passed the Michigan Senate and is now in the Michigan House of Representatives.

According to the Community Mental Health Association of Michigan (CMHAM) and other state organizations, a wage increase above minimum wage for direct care workers is needed to stabilize the work force that now has a 37% turnover rate. The difficulty and responsibility of the jobs these workers perform should be recognized and supported with better pay and working conditions.

Further complicating the CMH crisis is the necessity for the legislature to assure adequate Medicaid funding to pay workers to provide the services needed for people with disabilities. An increase in the minimum wage overall should bring an upward pressure to raise wages for direct care workers and to acknowledge the importance of adequate Medicaid funding to provide services. 

**********************

More on the need to raise direct care workers wages above minimum wage...

See also, "Michigan state senators on Wednesday dramatically scaled back two citizen-backed laws to raise the minimum wage and require paid sick leave."

And furthermore, this is from a Detroit Free Press column by Brian Dickerson on  12/2/18: 

• Lock 148 elected representatives in a couple of large rooms.
• Remind those assembled that more than a third of them will be out of their jobs in 30 days.
• Sit back and enjoy the fun as dozens of lawmakers with nothing left to lose take the $57-billion-a-year enterprise called the State of Michigan for one last, wild spin around the block.

"What could possibly go wrong?"

Abelone Kelley December 03, 2018 0

Michigan 2018: Making Sense of the political landscape for people with disabilities, Part 3

This is a continuation of “Making Sense of the political Landscape…” based on a PowerPoint presentation by Alan Bolter, the Associate Director of the Community Mental Health Association of Michigan (CMHAM) and his oral presentation at a Town Hall meeting at Washtenaw County Community Mental Health on 11/15/18.

Here is how the CMHAM describes itself: 

"Community Mental Health Association of Michigan (CMHAM) is a trade association representing the 46 Community Mental Health Boards, 10 Prepaid Inpatient Health Plans, and more than 90 provider organizations that deliver services to adults with Mental Illness, children and adolescents with emotional disturbances, persons with Intellectual/developmental disabilities, and those with substance use disorders in every community across the state." 

"Part 3" gets into the nitty gritty of Medicaid funding for people with disabilities, some of which I do not understand, but then I am not alone. Many people dealing with this important benefit for people with disabilities are at times at a loss to explain Medicaid policies and why and how they are what they are. The following includes excerpts from the PowerPoint with a few notes of explanation thrown in and links to more information.

***************************************

Budget Issues/Medicaid Underfunding

Budget impact due to Medicaid enrollment shift – Shift of DAB Population

• Since FY16 our members have seen a significant shift in Medicaid enrollment involving individuals identified as Disabled, Aged, and Blind (DAB) moving to Healthy Michigan Plan (HMP) & Temporary Assistance for Needy Families (TANF) programs. Our members conducted a study that showed nearly 42,000 individuals in FY16 & FY17 categorized as a DAB and are now categorized as HMP or TANF, which has resulted in nearly $100 million in lost revenue to our PIHP system.  [This loss of funds reflects the difference in Medicaid reimbursement to CMH agencies under these programs. Reimbursement to a CMH from the state is much less if an individual is identified under the Healthy Michigan Plan (Michigan’s Medicaid Expansion for people with an income above the poverty level) than under the DAB program.] 
• The base rate amount for a DAB enrollee payment is $266.90, which includes state plan ($135.84) & 1915 (b)(3) ($131.06) (x age & gender x geographic region). The base rate for a Healthy Michigan enrollee is $29, while each TANF enrollees is $15.28. [Michigan has a modified managed care system that reimburses CMH's based on how many individuals are eligible for services under various categories plus other factors.

[See the PowerPoint on Budget Shortfalls not just a DAB issue - other Medicaid factors that describes a systemic funding problem creating a budget deficit of $133 Million "that is causing fiscal and client services difficulties across the state."]

Medicaid Funding Issues Moving Forward 

Community expectations and State requirements continue to grow.

• Increased requirements for independent living settings (HCBS) 
• more jail diversion and reentry requirements 
• housing and crisis stabilization programs 

Insufficient Medicaid funding

• Medicaid enrollment shifts (DAB issue) 
• 2-year look back for rates(does not allow for real time adjustments) 
• staffing costs continue to rise (minimum wage increases) 
• insufficient rates for both Healthy Michigan and autism have lead to an erosion of the Medicaid benefit in some areas. 

Failure to fund federally required contributions to PIHP/CMH risk reserves.

• ISF [Internal Service Fund - I think this has something to do with holding money in reserve to cover unexpected expenses?] Contribution - Late in the budget process we recommended to include, in the FY 19 Medicaid rates paid to PIHPs, revenue to support reasonable contributions, by the PIHPs, to their ISFs, as is done with any at-risk health plan. 
• Recent Medicaid rate certification letter indicates (for the first time in a certification letter) that a portion of the administrative costs provided to the PIHPs is intended for a risk margin, the amount (0.75% for DAB, the largest component of the PIHP’s revenue), this level of risk margin is far too low given the 7.5% risk corridor. If the ISF were never used, it would take a PIHP ten years to fund the 7.5% needed to share risk with the state. 

[For some unknown reason the amount of funding sent from the state to fund CMH services is $133 Million less than is actually spent. Mr. Bolter speculated that it may have to do with dollars being moved around within the Department of Health and Human Services, but he could not say for sure. In other words $$’s sent out from the state is less than what is actually spent. The deficit caused by this is $133 Million. in a system that is not allowed to have deficit spending.]

What does the Future Hold?

We would expect to see more of a deliberative (slower) process in Lansing.

• Budget process should slow down 
• Completed in June? Governor Snyder and Republican legislature completed all 8 budgets in June. 
• Return to [former Governor] Granholm vs Republican budget process? State budget process not completed until deadline 

Section 298 – what will Governor Whitmer do? [Under Section 298, the Michigan Legislature directed the department of HHS to develop a set of recommendations regarding the most effective financing model and policies for behavioral health services for individuals with mental illnesses, intellectual and developmental disabilities and substance use disorders - it has created a boatload of controversy.] 

• Regardless of 298 direction expect change 
• Too much $$ at stake and involved 
• National movement/trends in health care 
• In 2020 the Medicaid Health Plan managed care contract can be revised - Signed in 2015 – 5-year contract w/ three 1-year extensions available. 

Governor – Elect Whitmer’s To-Do-List (in the next 60-100 days)

• Hire executive office staff 
• Appoint cabinet members (Department Directors) 
• Write an Inaugural Address 
• Write a state of the state speech 
• Write/develop FY20 state budget 

Useful Information to stay informed

Michigan Votes – plain language descriptions of every bill, amendment, and vote that takes place in the Michigan legislature.

Michigan Legislature – copies of the bills, find the status, summaries, etc.

Michigan House of Representatives & Michigan Senate – find legislative contact information, committee and session calendars, and you can watch committees and session live.

Contact Information: Community Mental Health Association of Michigan 

• Alan Bolter, Associate Director  
• abolter@cmham.org 
• (517) 374-6848 

[Additional information: Work is under way to replace the Caro psychiatric facility in Tuscola County with a new facility that will increase the number of psychiatric hospital beds from 150 to 200.]

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See also MI Political Landscape 2018, Parts 1 - 3

Michigan's CMH system: Facts and Figures

Abelone Kelley November 26, 2018 0