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Bark’s Bytes #36 | Seriously

Written by John Wayne Barker on . Posted in Barks Bytes.

Published October 16, 2018

I understand a few readers were unclear if the most recent Bark’s Bytes was my opinion or the position of MOHR. To be clear, all postings of Bark’s Bytes are strictly my opinion. Even when I quote others, their statement is being used by me to make a point and does not imply they agree/disagree with my opinion. Still, to be clear I’ve updated the Bark’s Bytes disclaimer to read ~ “This is an opinion piece. The views stated here are those of JWB, not those of Merrick, Inc., or any other group. You may agree or disagree with his views, but just keep in mind that man still wears Zubaz and chooses to shave his head. Consider yourself advised…”.  Now to the subject of this posting.

All of us know there are times you look back on a moment or decision and realize a mistake was made and a correction warranted. Most disability stakeholders in Minnesota (MN) would agree that the 7% rate cut on July 1st was a mistake. Yet the MN Department of Human Services (DHS) is unwilling to make a correction. As one MN Senator stated in an email I read, this Commissioner only wants to fight. My immediate reaction was how can she seriously think fighting is in the best interest of those counting on the system to support and honor their choices in having a good life?

Using information gathered from other sources I will try to provide a concise summary of the how I think the 7% rate cut unfolded.

  • Implemented on January 1, 2014, the Disability Waiver Rate System (DWRS) used a Direct Support Professional (DSP) wage that resulted in rates insufficient to address the growing workforce shortage. As a result, the legislature increased rates by 1% on 4/1/14, 5% on 7/1/14, and 1% on 7/1/15. This total increase of 7% was not a COLA, or bridge until the inflationary adjustment was applied in 2017, but was enacted by the legislature as permanent adjustments to address the ongoing workforce shortage. Accordingly, the legislature approved a bill in the 2018 session to “fix” the situation that was included in an omnibus bill the Governor vetoed for unrelated reasons.
  • In early 2018, DHS submitted a request to the Centers for Medicare and Medicaid Services (CMS) to approve various changes to the DWRS. During that review the confusion regarding the 7% rate increases arose between CMS and DHS. Whether as a result of serious miscommunication, or lack of factual accuracy, DHS conveyed that the 7% increases were COLAs which apparently led CMS to conclude that Minnesota was stacking a COLA and inflationary adjustment during the same rate year.
  • CMS seemed concerned about the miscommunication as evidenced in an email sent on 2/23/18 to DHS stating that ~ “Nothing in my communication was meant to be interpreted as a requirement from CMS for the state to eliminate a legislatively approved annual COLA, but rather to ensure that the COLA and rebase did not occur in the same year”.
  • In spite of the CMS email, the Commissioner has repeatedly and steadfastly represented that DHS was required to cut rates as a direct result of instructions and information provided by CMS and claims that if not done, CMS would deny federal financial participation. To my knowledge nothing has been offered by the Commissioner that validates her position.
  • The 7% rate cut was implemented by DHS on 7/1/18 resulting in a $147 million dollar reduction in waiver funding for disability services in SFY 2019, 2020, and 2021 despite state law approving the 7% rate increases. With no other options to protect services, and the 7% increases still being the law, providers initiated legal action against the Commissioner that is scheduled for a hearing in federal court on 11/1/18.

At this point there is not much that can be done since it is unlikely that a legal resolution will happen before a new Governor takes office and the current Commissioner’s last 2 months are largely irrelevant. What is relevant is the next Governor needs to appoint a Commissioner that regards all of the stakeholders as genuine partners in providing services that people with I/DD want and need within the regulatory and funding constraints in place. In my view it should not be an academician, bureaucrat, DHS consultant, hospital administrator, lawyer, or political sycophant. A provider would be a good choice or a MN legislator that actually knows something about the services DHS administers and cares that DSPs make a livable wage. A commitment to making things simpler without being simple and having genuine empathy for those we serve and their families would also be important qualities to look for in a Commissioner.

Although up to the task, I am getting weary of fighting the bureaucracy and truly hope that our next Commissioner inspires DHS leadership to find the good middles and negotiate the difficult compromises that matter so together the stakeholders can build effective programs that have a long lasting impact for those counting on us to support and honor their choices in having a good life. Seriously!