Regulatory reliance on “a day” as the sole reimbursement unit in group home and sponsored placement residential settings will be significantly harmful to the fundamental principle of equity, individual served in those settings and small businesses.

1. The proposed regulations establish “a day” as the unit of service for reimbursement for group homes in 12 VAC 30 – 122 – 390 – C1 and for sponsored residential placements in 12 VAC 30 – 122 – 530 – C1, while creating a 24 hour a day service obligation for each service. This provision treats all days across individuals in the services as equal.

2. All residential service days across individuals are not equal. Significant variance will occur based on individual choices and preferences as regards employment and other day support options.

3. Many individuals will choose to avail themselves of day support opportunities which can result in some of them being absent from the home for 7 to 8 hours per day 5 days per week with others choosing programs that entail fewer hours and/or days per week. The Burns and Associates analysis in the Public Comments and Response document dated 4/23/15 – # 44, provided their official guesstimate of 26.1 hours per week in day/work programs for individuals who chose this option (this underestimates the actual time the person is outside the residential setting with these programs as it typically excludes the travel and transition time involved). Even assuming this number is accurate an individual who avails themselves of day support/work will be absent from the home (during prime support hours when they would be awake and active) for 56.55 full 24 hour days per year which represents 169.65 (8 hour shifts) where residential provider does not have to provide staffing nor supports.

4. Some individuals most of whom have prior experience with a range of day/work support options will choose not to avail themselves of day/work support opportunities and will receive plan services in the home on a continuous 24 hour basis. While there are a variety of reasons why an individual may not choose to be out of their home in a structured program during the day (retired, homebody by nature), many of these individuals choose not to avail themselves of outside day/work support opportunities because they have a strong individual preference for the staff and supports they receive in the home. Again, it is important to note that the additional hours they remain in the home are prime support hours where the individual is awake and active and any good residential provider is providing community integration, recreational/leisure, social and other plan supports consistently during these hours to individuals who remain in the home with no difference from the supports they could receive in a day support program. By choosing to allow the residential provider to meet their support needs during the day the individual is able to avoid the regimentation (set travel hours, set lunch times, set activities/schedules etc.) that is necessary and typical in structured day support programs and has much more flexibility in collaboratively achieving the community integration and other support activities they prefer to engage in if they remain in the home.

Clearly, from a residential provider perspective “a day” of support and services for an individual who chooses to be in a day/work support program and an individual who chooses not to is not equal; as the need for staffing, travel and support provision is significantly different.

1. The regulatory requirement that the “day” of these 2 individuals be treated equally for residential reimbursement is significantly harmful to the fundamental principle of equity the regulations seek to establish, individuals who receive residential waiver services and uniquely to small businesses.

2. Gross violations to the principle of equity do occur now at 2 levels:

3. Individuals served in residential programs – the SIS users manual on page 94 clearly establishes that a fundamental principle of equity to be served is that individuals with the same level of need receive the same level of funding; this is reiterated as a purpose for the regulatory changes in the introduction to the changes in the Virginia Register of Regulations 2/4/19 which claims “the same level of spending for individuals with the same level of needs” to provide for “more equitable resource distribution”. Treating the day of individuals who decline structured day/work support programs outside the home as equal to a day for those individuals who do avail themselves of these daytime opportunities creates a clear violation of the intended goal as the individual who avails themselves of daytime opportunities outside the home will receive additional funding for that day when they engage, while the individual who stays home will not receive that additional funding even though they have the exact same level of support needs. Thus, individuals with the exact same level of support needs will receive significantly different daily funding from the state; representing a gross substantial disparity each plan year; merely because they chose to exercise their right to receive their services when, where and from the provider they preferred.

4. Residential providers – treating the day of the 2 different individuals in this circumstance as equal can result in reimbursing 16 hours of awake and active supports and 8 hours of awake and active supports equally when they clearly are not – 16 hours of work should pay more than 8 hours of work; on an annual basis even using the States low guestimate this represents almost 2 months of 24 hour days on inequitably compensated work-an outrage.

5. Individuals receiving residential services are devalued and their rights are being denied at this moment due to the emergency implementation of these changes. The state devalues individuals by telling them that their day (and hence they) are not worth as much if they choose to stay home; literal as well as figurative devaluing. Ironically, the introductory defense of the regulations in the Virginia Registry of Regulations 2/4/19 makes the claim that these changes “provides compliance with the CMS final rule” when in fact they create a perverse direct financial incentive to promote direct violation of their HCBS – CMS final rule rights in areas that range from their free choice of providers/ services and most importantly to their right to have control over their daily schedules. A significant number of providers (based on statements made by them at various multi provider trainings and individual served statements of their experience) directly tell individuals served in their residential programs that they cannot call out or simply choose to stay home from their day/work program, others are less open about the restriction but engage in significant “persuasion” to assure that the individuals do sign up for out of the home programs and go, some may also make acceptance into a program conditional on engaging in a day program outside; I doubt that I am aware of all the ways that some residential providers are restricting an individual’s choice as to their daily routine as regards outside of the home day program but these abuses are occurring now on a daily and routine basis. Several of the examples I am aware of directly used these regulations as the reason they could not/would not have staffing available. The financial incentive to providers to restrict individual choices is magnified when the residential provider is also the provider of the day/work support program as the current structure allows them to “double dip” into the state coffers receiving full reimbursement for the day of residential supports and additional funds for the day of work/day supports; creating an even larger financial incentive. Whether these practices are recognized/deemed important or not by the state – no one can deny given the analysis above that residential providers have a clear and perverse financial incentive to ensure individuals receiving residential services sign up for and leave the home to attend day/work programs. Since the State relies on financial incentives to achieve its other purposes how can they possibly deny that this financial incentive will create this perverse purpose.

6. Very small businesses which focus on providing exceptional residential supports are particularly disadvantaged by equal treatment of unequal days. Large bureaucratic organizations have the economies of scale, physical infrastructure and administrative hierarchy that allows him to engage in “double dipping” and as such are unlikely to protest this provision. However, very small businesses focused exclusively on residential supports have been precluded from “double dipping” by onerous licensing requirements for separate offices, staff and other barriers unless they want to become larger and more bureaucratic organizations; resulting in them shouldering the burden of unequal days with no opportunity to recoup losses. Even if these very small businesses could more easily engage in “double dipping” this would merely mean a proliferation of inbred work/day support programs that would reduce the range of providers and experiences an individual is likely to encounter; thus, reducing the advantage of separate residential and work/day programs promoted by residential only providers.

7. Preemptively, because the State does not provide any opportunity for direct rejoinder to whatever their response is to this criticism, it is important to note the same criticisms were made in 2014 in response to the Burns and Associates rate proposals. As is typical of bureaucratic/ political responses the specific equity, perverse incentives and small business criticisms provided here were not directly addressed in their response, rather they combine these comments with a number of others about per diem’s and set up a specious “straw man” argument they can easily address on reimbursement adequacy by pointing out that the rate structure did provide for 24 hour coverage for everyone in these residential settings and then offering support documentation and staffing flexibility as advantages of their per diem approach. While their response is true it has absolutely nothing to do with criticisms provided here the same inequity is created, the same rights are violated and very small businesses focused solely on exceptional residential supports remain uniquely disadvantaged.

8. Recommendation – the unit of service for residential programs should be bifurcated into 2 units of service each a per diem but with one representing individuals who choose to participate in a work/day support program outside the home and the other representing individuals who choose not to participate in a work/day program outside the home. Individuals who choose not to participate in a program outside the home should receive a higher reimbursement rate that would bring their reimbursement rate in line with the total daily funding of the other individuals who demonstrate the exact same level of need but do participate in outside work/day programs. This approach would retain all of the benefits claimed for the per diem by Burns and Associates while mitigating the harmful impacts. While logistics of working out an exact amount may be difficult due to the variables involved, the State seems to trust Burns and Associates and they are clearly capable given their past work of calculating the averages and variables and arriving at some defensible figure which even if it were not a direct one for one equalization in every individual case would at least mitigate the gross inequities, violation of individual rights and disadvantaging very small businesses that are occurring right now under this current structure.

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