Administration proposing last-minute regs changes that will reduce DDS oversight of providers

(Cross-posted from The COFAR Blog)

As it winds down to its last few weeks, the Patrick administration is set to make changes to two state regulations that we are concerned will reduce state oversight of corporate providers of services to the developmentally disabled and further reduce family involvement and choice in care and services.

We are particularly concerned about a proposed change by the Department of Developmental Services that appears to give DDS providers at least partial say in whether their licenses to operate residential and other programs are renewed.  Proposed new language in the regulation (115 CMR 8.00, Certification, Licensing and Support) codifies a process that allows providers to assess their own compliance with state licensing and certification standards.  This, to us, seems to sanction a conflict of interest.

Meanwhile, proposed changes to a second regulation (115 CMR 7.00: Standards for All Services and Supports) appear to reduce staffing requirements for group homes and remove the words “rights and dignity” from a discussion about providing residential supports and services to DDS clients. More about those additional changes below.

The rewrite of the licensure regulation adds a new section that refers to both a “self-assessment” done by the provider of its own supports and services and a “targeted review” of the provider by the Department as part of the licensure renewal process. Licenses to operate are normally granted to DDS corporate providers every two years following a survey or inspection of their residences and programs.  The following sentence in this new section seems to describe a key aspect of this process:

Ratings from the targeted review and self-assessment [done by both the Department and the provider] will be combined to determine…the licensure levels for the provider. (my emphasis)

Based on this language, it appears as though the provider is expected to be involved in making the decision whether the provider will be granted a full renewal of its license or a conditional license or whether it will receive some other licensure requirement.  This seems to defeat the purpose of the licensure process, which should be to provide an outside assessment of the provider’s ability to provide adequate supports and services, and to make licensure decisions that are independent of influence from the entity being licensed.

In particular, the provider will be given the authority to review licensure and certification “indicators” that it was found in surveys not to have met.

DDS licenses and certifies hundreds of nonprofit,  state-­funded  group home and day program providers throughout the state each year.  A review by COFAR in 2012 of 30 randomly selected online licensure  and  certification reports raised a  number of questions about  the effectiveness of the provider licensure and certification system in general.  The review also found that DDS made substantial changes to its licensure and certification procedures based on input from the providers themselves.

Other proposed licensing changes

In addition to the introduction of the self-assessment process, the rewritten licensure regulation adds a requirement that the Department give providers at least 30 days notice of planned licensure visits or surveys of their residences.  Currently, there is an advance notification requirement, but there is no timetable for that notice in the regulation.  Under the new language, the provider has a month to get ready.  Once again, this allowance appears to defeat the purpose of the licensure survey process, which is to assess the ongoing care and conditions in facilities.

If a provider knows a month ahead of time exactly when a two-year licensing survey of its facilities will take place, the provider will have an incentive to bring its facilities into compliance with licensing standards at that particular time, but not necessarily at any other time.

In the same section, the rewrite removes current language stating that notification of the survey must also be given to guardians, family members, individuals, and service coordinators.  It seems doubly inappropriate to us that the providers will receive a month’s advance notice of planned survey visits, but guardians and families will apparently no longer be told about those visits. We cannot think of any legitimate justification for eliminating that notification to families and guardians other than a desire to keep them in the dark about the Department’s licensure and provider monitoring efforts.

In addition those those changes:

• The rewrite of the licensure regulation removes a statement that the survey team may review the provider’s system for conducting Criminal Offender Record Information (CORI) checks on all persons whose paid responsibilities may bring them into direct contact with individuals served.  We do not understand the rationale for removing this common-sense requirement.
• The rewrite removes language stating that in cases in which a provider fails to correct conditions that place residents’ lives in jeopardy, those services will not be licensed or certified until such time as corrective action has been taken.  We do not understand the rationale for removing this common-sense requirement either.
• The rewrite also increases the length of term of a “conditional license” granted when there is only “partial achievement” of licensing standards or “critical indicators” from one year to two years.  Thus, even if a provider is only able to partially meet licensing standards, the provider will still receive the same two-year term for its license as providers that are able to meet all the standards.

Changes to the Services and Supports regulation

As noted above, DDS is proposing a number of changes to the services and supports regulation, which we are concerned will reduce both group home staffing requirements and rights of DDS clients.  Those proposed changes include the following:

• In defining and discussing both Residential and Individualized Home Supports, the rewritten language in this regulation removes the words “rights and dignity” in discussing client outcomes.  In one instance, that wording is replaced by language stating that providers “shall operate in a manner that supports positive outcomes for individuals in all of the services and supports offered…”
•  In defining Family Supports, the rewrite eliminates the phrase that these supports should “enable the family to stay together.” We cannot think of any legitimate justification for removing that phrase.
• In discussing Staffing Standards, the rewrite removes a reference to providers having sufficient staff with enough training to ensure “quality of life outcomes delineated in the provider’s mission statement…”
• The rewrite of this same section removes a requirement that there be at least two staff persons on duty in homes where three or four individuals live and in which three or more individuals require assistance to evacuate within 2½ minutes.  In addition, the rewrite removes a requirement that at least one “overnight awake” staff person be on duty at night in homes in which at least one individual requires assistance to evacuate within 2 1/2 minutes.
• The rewrite adds a section to the regulation that appears to advocate the opportunity of “integrated” or mainstream work opportunities for all persons with developmental disabilities, apparently no matter how low-functioning they are.  For instance, the new language states the following: “Integrated, individual employment is the preferred service option and outcome for adults of working age…All individuals are to be encouraged and supported in seeking and securing employment or becoming engaged on a pathway to employment.” (my emphasis)

We believe the Department needs to recognize that there are differences in the levels of ability and achievement potential in different people.  The new language in this section reflects an ideological blindness to those differences and does a disservice to all persons with developmental disabilities.

DDS has scheduled hearings on the regulatory changes on Wednesday (December 17) at 10 a.m. at the DDS Central Office at 500 Harrison Avenue in Boston, and on Thursday (the 18th) at 10 a.m. in the Northborough Free Library, 34 Main Street, Northborough. Written comments may be submitted by mail to the Office of the General Counsel, DDS Central Office, or by fax to (617) 624-7573 until 5:00 p.m. on Thursday.