January 28, 2016
Associate Regional Administrator
Department of Health and Human Services
Centers for Medicare and Medicaid Services
JFK Federal Building, Government Center
Boston, MA 02203
CT Department of Social Services’ (DSS) violation of the Acquired Brain Injury (ABI) Waiver II in Failing to Fill Authorized Slots
Dear Mr. McGreal:
I am a consumer advocate with CT Brain Injury Support Network, which assists individuals in Connecticut with brain injury and their families to assess necessary services. I write to follow up on the letter to you dated January 6, 2016 from the Connecticut Department of Social Services, which discussed ongoing non-compliance with the requirements of the Acquired Brain Injury Waiver (CT 0302. R03, or “waiver I”), to advise you of a far larger violation of the terms of a different ABI waiver, known as waiver II. Specifically, while 75 slots were added to Waiver II, as of Dec. 1, 2015, DSS has selectively made only 62 of those 75 slots available. And the people on the waiting list for this waiver, left behind last year, cannot apply for any of the 62 slots DSS made available on Dec. 1, 2015, because they are reserved for other groups by the terms of the waiver.
While DSS has stated to us that Waiver II allows them to not fill all of the slots, I can find no authority for this. In fact, the Department specifically checked off in the Waiver II document, Appendix B-3, subsection d, the option:
“The waiver is not subject to a phase-in or a phase-out schedule.”
This was chosen instead of checking off:
“The waiver is subject to a phase-in or phase-out schedule that is included in attachment #1 to Appendix B-3. This schedule constitutes an intra-year limitation on the number of participants who are served in the waiver.”
And in Appendix B-3, DSS checked off, in section b:
“The State does not limit the number of participants that it serves at any point in time during a waiver year.”
Lastly, section c of Appendix B-3 specifies the only situations where holding back on filling all the waiver slots is authorized:
“Reserved Capacity for Money Follows the Person Demonstration (MFP) Participants. Reserved Capacity for DMHAS Acquired Brain Injury Services Program Participants”
This also is in sharp contrast with CT’s other Medicaid waivers, where the state specifically chose the option of not filling all of the authorized slots. For example, in the Katie Beckett waiver, DSS selected, in Appendix B-3, the option:
"The State limits the number of participants that it serves at any point in time during a waiver year" (emphasis added).
The ABI waiver containing all of these DSS choices, specifically declining the discretion to leave any of the approved slots unfilled, was approved by two legislative committees and then by your agency. Nevertheless, DSS is refusing to fill these 13 slots solely because of budgetary issues. In a recent letter to me dated December 16, 2015, DSS stated:
“When the budget was developed for the waiver, the underlying assumption was that approximately 13 persons would leave the ABI I waiver each year by attrition. Since funding for the ABI II waiver is dependent upon ABI I attrition, there are no funds available to immediately utilize the 13 slots now identified as unfilled or designated in waiver year 2 that began December 1st. The waiver is an enabling document that allows us to operate the program. This in no way means that we are required to offer slots unless we have the supporting funds available.”
But it appears that, under the terms of this formally-approved waiver document, as discussed above, DSS, by its own choices, has in fact obligated itself to fill all of these slots, even if certain assumptions it had made concerning a completely different waiver, Waiver I, and the saving of money under it, did not happen to pan out. Waiver II says nothing about the filling of those 13 slots being conditioned on what happens or does not happen to individuals on Waiver I. The department specifically declined in this approved waiver to check off the option of “phasing in” or “limit[ing] the number of participants that it serves at any point in time during a waiver year.” DSS cannot now unilaterally rewrite the approved waiver document to its liking to reflect internal, but unstated, “assumptions” and turn those assumptions into actual waiver terms that do not currently exist.
Not complying with the terms of an approved federal waiver is similar to not complying with the terms of the approved Medicaid state plan, which establishes an entitlement for Medicaid enrollees. Neither is permissible under federal law, and, as long as it chooses to run this waiver, the Department will have to set aside the money to comply with its commitments to the federal government contained within it, including the filling of all 75 slots. The budget is no more an excuse for not filling all of these 13 slots than it is for closing intake to its entire Medicaid program, or to a particular benefit category included in its state plan, because more eligible people applied than anticipated.
I note that this is not the only brain injury waiver violation identified by DSS. In
DSS’s January 6th letter to you acknowledging non-compliance with timely case management services under ABI waiver I, it asserts that the cause of such non-compliance is that the "committees denied" their proposal to outsource the Waiver case management function. It then says that, in light of this, DSS cannot process applications or activate plans for the 13 slots in Waiver II, even when the funding becomes available:
"Further, we are not presently able to provide sufficient staff support to activate new clients on the 13 new waiver slots that would otherwise be made available, on the basis of availability of funds over the course of 2016. This will mean that the involved individuals will remain on the waiting list."
However, the Department’s actual performance suggests that this may be exaggerated because DSS has in fact been quite on top of case management services at least under ABI waiver II. Perhaps this exaggeration serves as additional justification for not filling the 13 slots it is obligated under waiver II to fill.
DSS staff has shown that they are extremely efficient in processing and activating plans. According to DSS, they did not begin processing/activating plans for Waiver II participants until late spring 2015, due to the issues that needed to be resolved to get the ABI Waiver II fully up and running. But they were all then addressed with laudable efficiency, as follows:
Three Social Workers were assigned to process, write, develop and complete up to the stage of activation (which is done by central office) ALL Waiver II plans.
In 6-8 months, more than 40 plans were processed and activated, by November 2015, by only three social workers.
15 additional plans were completed and activated by December 31, 2015
Another 23 plans were fully in process of being approved and implemented as of January 8, 2016
This means that approximately 45 applicants were processed, with plans developed, approved and activated in 6-8 months, by just three DSS social workers, while they also were working on an additional 23 plans.
On average, each social worker was able to process, many to completion, approximately 22 ABI Waiver II plans in 6-8 months.
And now that most of the "heavy lifting" to get Waiver II up and running is done and CT will save approximately 9 million dollars due to cost savings of services to those formerly entirely state-funded participants, the processing of new applications will be considerably reduced. In year two of ABI Waiver II, there are far fewer new slots, especially for new participants who do not already have case-managed programs already in place under the Money Follows the Person (MFP) program:
There are 54 MFP reserved slots. However, MFP Manager, Dawn Lambert, has stated they only expect to use a total of approximately 30 slots in year two.
All MFP participants are already being served with Waiver plans, with staffing and programs fully in place and running for a full year before a transition in funding to Waiver II begins.
MFP slots do not require DSS social workers to process, develop and activate plans, as that was done when survivors went onto MFP.
This leaves DSS social workers with the task of processing applicants for just 8 reserved DMHAS slots in year two of ABI Waiver II. (Waiver I is closed, so there are no applicants being processed for that waiver; only individuals grandfathered on that waiver receive case management services, and that is to maintain them).
The only other slots written in ABI Waiver II, for year two, that need to be fully processed and activated are the 13 slots DSS refuses to open for budgetary reasons. As indicated above, three DSS social workers were able to complete, or have in process, approximately 68 applicants in less than a year. So it strains credulity, even if, as DSS now states, they have reduced the number of social workers who are specifically tasked with processing Waiver 2 cases, that they can only process 8 in the next 12 months due to staff shortages, as they "do not have adequate staff to process new applicants" specifically for the 13 slots
I also am aware that the development, plan and entire process is already completed for at least one brain injury survivor who qualifies for one of the 13 slots DSS refuses to open. In fact, DSS is so far ahead of themselves in writing, developing and approving plans that they moved forward and provided this survivor with a completed, approved and signed plan by DSS Central Office, more than 3 months ago.
This means that DSS staff is capable of developing, writing and approving plans and applicants more than three months ahead, but now is asserting that the only people they can no longer process or activate are those waiting for the 13 slots, which they have stated they do not want to fill.
Lastly, even if it were true that DSS does not currently have enough staff to provide the necessary case management services for these few individuals who should be covered under Waiver II, that also is no excuse. The “significant staffing shortages and statewide hiring freeze” DSS identified in its January 6th letter to you is within the ability of the administration to correct—it is the administration which has itself chosen to impose a hiring freeze and to not fill DSS positions which need to be filled.
Based on all of the above, it appears that the only real issue here is that the state administration has chosen on its own not to allocate the relatively modest funds necessary to fill the 13 slots it has already voluntarily obligated itself to fill under the federal waiver it wrote and had approved by your agency. It is particularly curious that it has not done this, given that Connecticut Medicaid has been saving millions of dollars compared to projections and that your agency reimburses DSS between 50% and 100% for all of its Medicaid-related expenditures. In any event, whatever the budgetary situation is within Connecticut, it is no excuse for non-compliance with federal Medicaid law, including with formally- approved federal waivers under which no authority to leave slots unfilled has either been requested by the state or granted by your agency.
Accordingly, on behalf of the 13 individuals with brain injury who desperately need these services and can readily fill these slots, at least one of whom has a DSS-developed plan in place and all ready to go, I urge you to intercede and instruct DSS to fill all of these slots without any further delay.
I greatly appreciate your attention to this matter.
CT Brain Injury Support Network
28 Lake Road
Columbia, CT 06237
cc: Vikki Wachino, CMS Medicaid Director
OPM Secretary Benjamin Barnes
DSS Commissioner Roderick Bremby
Deputy DSS Commissioner Kathleen Brennan
OPA Executive Director Craig Henrici
Attorney Nancy Allisberg, OPA
Senator Cathy Osten
Senator Beth Bye
Senator Gayle Slossberg
Representative Catherine Abercrombie
Representative Toni Walker
Representative Marilyn Moore
Senator Bob Duff
Senator Rob Kane
Representative Craig Miner
Senator Gary Winfield
Senator Joe Markley
Representative Gail Lavaillee
Representative Joe Aresimowicz
Representative Robyn Porter
Representative Gail Lavielle
Senator Paul Formica
Representative Jay Case
Representative Melissa Ziobron
Attorney Wendy Wanchak