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Bark’s Bytes #43 | Sameness

Published November 9, 2021

In the wee hours of 6/26/21, without following parliamentary procedures and with no public testimony, language creating a taskforce to eliminate the 14(c) special minimum wage option in Minnesota by August 2025 was included in an omnibus bill later signed by the Governor. While the how and why that happened may be a topic for a future editorial, right now 6,000 people with disabilities and their families need to understand the consequence of this legislation.

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Bark’s Bytes #42 | Being BOLD

Published September 27, 2021

In mid-March of 2020 our services were shutdown by the Minnesota Department of Health (MDH) and Department of Human Services (DHS) as part of Governor Walz’s peacetime emergency plan to mitigate the transmission of the Covid-19 virus. Despite the best efforts of families and residential providers, we quickly understood how detrimental it was to the mental, physical, and emotional health of clients to be isolated at home 24 hours a day with no end in sight. In mid-June we were permitted to begin serving a limited number of clients and felt compelled to serve as many as possible within the DHS restrictions.

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Bark’s Bytes #41 | You

Published February 9, 2021

It took me nearly three months and I just finished reading the “Subminimum Wages: Impacts on the Civil Rights of People with Disabilities” 2020 Statutory Enforcement Report issued by the U.S. Commission on Civil Rights (CCR). Not only was it long at 349 pages and detailed with 1,320 footnotes; more than 9,700 public comments were submitted (far more than any other issue ever studied by the CCR) and is a great example of a predetermined partisan recommendation waiting for a report.

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Bark’s Bytes #40 | Fishing on Lake Covidtogoma

Published August 12, 2020

John Wayne Barker with fish at lake

“Fishing for an answer” is not an uncommon phrase here in Minnesota and is certainly one way to describe what the Minnesota Organization for Habilitation and Rehabilitation (MOHR) has been doing since mid-March, with the support of 67 Senators and a few Representatives, in getting Covid-19 guidance from the Commissioner of DHS and emergency funding from the Governor. I recently went on a fishing trip with two-day program colleagues that gave me the opportunity to put the last 5 months into some perspective.

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Bark’s Bytes #39 | Smoke & Fire

Published January 7, 2020

In late 2019, it came to my attention that Arc Minnesota was actively building a coalition of stakeholders to develop a 2020 legislative plan to phase out the commensurate wage regulation, known as 14(c), which permits a special minimum wage. After hearing strong opposition from many stakeholders this plan has been shelved for the time being. Still, there are several efforts at the federal level to eliminate the 14(c) regulation, and the Minnesota Disability Services Division (DSD) is moving forward with its plan to redesign Day Training & Habilitation (DT&H) services and impose a 36-month limit on prevocational services (with a possible 12-month extension) for anyone enrolled after 12/31/20.

It is my view that this DSD plan will eliminate the center-based work option for adults with intellectual or developmental disabilities (I/DD) even if the 14(c) regulation is retained. To explain my reasoning I wrote a document entitled “Smoke & Fire” that is formatted in the style of a 2015 document entitled “Myths & Realities” written by the RTC on Community Living at the University of Minnesota. My hope is that a reader will better understand the issue if explained in a similar format and structure.

Both documents are attached as a pdf to this editorial and I suggest that the reader print both and read the same section of each before moving onto the next section. In this manner, the contrasting views may be clearer to the reader by the time they finish reading the documents.

At Merrick we have more than 200 clients that earned more than $750,000 last year through our 14(c) center-based work option who either can’t or don’t want to work in a competitive integrated work environment. It is my hope that others will strive to convince DHS to reconsider its DT&H redesign plan and proposed limit on prevocational services so that people with I/DD can make meaningful decisions about how to live, work, and interact with the community as promised in the Olmstead Plan.

Bark’s Bytes #38 | Fixing a Myth

Published May 31, 2019

A long-standing myth was again part of the 2019 legislative discussions related to increasing Day Training and Habilitation (DT&H) rates. It appears that some decision makers continue to believe that the compensation for the highest paid employee in DT&H programs is excessive and that encumbering (a limitation on the use of funding) any rate increase is needed to ensure new funding goes to Direct Support Professional (DSP) wages.

Because this posting discusses compensation, I want to be very clear that MOHR did not endorse, assist, or comment on this study and posting in any manner. In addition, it is important that the reader understand the sources of my data that included:

  1. 101 of the 106 MOHR members (represents 95.3% of the current membership) had useful 2015 tax returns posted to Guidestar (a national organization that advances transparency in non-profits). Program revenue appears in lines 8 – 10, total combined salaries in line 15, and total expenses in line 18 of these tax returns.
  2. Part VII of these tax returns requires the reporting of any compensation exceeding $100,000. Of the 101 tax forms included in this study, 77 had this information. I contacted the other 24 MOHR members and requested they self-report their highest paid position in 2015 and 16 responded with this information. The responses of data from these 93 sources represent a total of 87.7% of the current membership.
  3. Average DSP wage, by region and statewide, as reported in the 2015 MOHR Wage Survey (62 respondents).
  4. Minnesota Council of Nonprofits (MCN) 2016 Wage Survey Report (569 respondents).

It is likely that most of my readers are not statisticians and, as this subject is not my specialty, I will not be offering a statistical analysis of this study. Also, as this is a statewide issue, I will not be reporting the results by MOHR region or nonprofit and my data will not be shared with any other party unless I need to validate its accuracy with decision makers. Now to my findings:

  1. Average annual program revenue was $4,414,728 with a range of $147,043 to $71,354,194.
  2. Average combined staff salaries was $3,173,467 (71.88% of program revenue) with a range of $96,666 to $50,258,051.
  3. Average compensation of the highest paid position at DT&H programs was $112,211 with a range of $36,200 to $315,428.
  4. Average percent of the highest paid position to program revenue was 6.31% with a range of 0.23% to 23.26%.
  5. Average percent of the highest paid position to total salaries was 9.04% with a range of 0.32% to 35.18%.
  6. Average ratio of DSP wage to average highest paid position was 1 to 3.87 with a range of 0.57 to 12.53.

So what do I believe these findings mean?

  • There is a significant range in program revenues and combined staff salaries making “one-size” encumbrances and wage reporting problematic.
  • Although the average combined staff salaries was 71.88% of annual program revenue, too high of an encumbrance will limit providers in using new dollars to pay for real operational expenses that have increased.
  • With an average of $4M in program revenue, the average highest paid position at day programs is $112,211 and only 2.6% higher than the average salary of $109,279 paid to Executive Directors of MCN non-profit members with $2M – $5M in revenues; suggesting that, as a group of non-profits, executive compensation at DT&H programs is reasonable to the market.
  • The metric of highest paid position as a percentage of program revenue and/or total salaries is not useful given the extreme range of revenues across the 93 respondents.
  • With a 1 to 3.87 ratio between the average DSP wage and the average highest paid position at DT&H programs compared to a ratio of 1 to 3.97 between a Special Services Aide in the Human Services Activity area paid $13.29 per hour and the average Executive Director salary reported by MCN, it is clear that MOHR members, as a group, are not paying excessive compensation to their highest paid employee. Even more striking, a 2017 Forbes article had the ratio of for-profits at 1 to a range of 100 to 400 and had the healthcare sector ratio at 1 to 275.

Are there high outliers among the 93 respondents when it comes to executive compensation? Absolutely, and, although it was usually related to the size of annual budget and geographic location, the highest salary was not paid by a program in the top ten of revenues. There are also low outliers, some making little more than their DSPs, and they outnumber the high outliers by quite a margin. I would encourage my colleagues to review their compensation metrics against these findings to see if any adjustments are warranted.

Since the 2015 facts show DT&H providers are not paying an excessive amount on executive compensation then it stands to reason we are spending these dollars on DSP wages and other essential operating costs. That being true, why are we imposing prescriptive encumbrance language and wage reporting on ALL DT&H programs based on a myth that we are not using rate increases to raise DSP wages?  And truly, after issuing a useless 2019 waiver transportation report, why would anyone believe that the Department of Human Services can accurately complete a “competitive wage analysis” or render a valid opinion based on provider wage reports that have yet to be defined?  Perhaps we should return to a cost plus reimbursement system if we are going to be micro-managed?

I understand that the theme of the 2019 legislation was to provide a “competitive workforce factor” and it felt right for decision makers to make sure it was used in that manner. Still, the 7% rate reduction last year was not taken away by encumbrance and should have been restored in the same manner so providers can decide what is best for their operations. Let’s stop requiring a fix for a problem that does not exist and adding more burdensome reporting to private sector providers. Instead, let’s pass rate increases without any encumbrance like is done for state-operated programs which provide the same services and already enjoy preferential treatment in so many other ways.

Bark’s Bytes #37 | Where is the Pea?

Published November 29, 2018

(game in which three nutshells are moved about on a table & you must guess the one with a pea underneath)

More than 4 years after its implementation the Disability Waiver Rate System continues to confuse clients and their families, puzzle case managers and county clerks, and delay payments to providers due to untimely and incorrect service agreements. So why did the Minnesota Disability Services Division (DSD) decide to make things even more difficult by fracturing Supported Employment Services (SES) into three distinct services called employment exploration (EES), employment development (EDS), and employment support (ESS)?

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Bark’s Bytes #36 | Seriously

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!

Bark’s Bytes #35 | I Am Back

Published September 17, 2018

My last editorial was posted in April 2017 and some have asked why I have been silent for the past 16 months. I chose to pause for two reasons. First, I needed time to reflect on the possibility that my perspective had become as unreasonable as the extremists I was criticizing. That many others continued to call for honoring an individual’s choice validated that my declarations were not unreasonable. Second, I hoped that others trying to collaborate with the Disability Services Division (DSD) would be more productive with my silence. It was not and we lost ground to an agency without genuine purpose or leadership. So, over the next few months I will be sharing my thoughts on the following issues:

The genuinely informed decision by DSD to impose 7% rate cuts;
The ill-advised choice by DSD to implement the new employment waivers;
The real reason DSD wants to redesign DT&H services;
The fallacy of revising the need determination process; and
The further dilution of the Section 511 process.

I am proud to be a member of the Minnesota Organization of Habilitation and Rehabilitation (MOHR) because we have a shared mission and care about each program’s unique ability to serve those with I/DD within the norms of their local communities. As providers we understand that it is normal to be abnormal and have come to expect that each person comes to us with special gifts. We do not enter a relationship with them with the idea that we are going to change them and do not have a mold for which we try and fit people in. Instead we try to figure out how to safely get them from one place to another, how not to allow anxieties to take control, and to understand their wants and needs when they communicate in unconventional ways. We get rid of the pressure on them to change and find the great gifts that make them who they are. The work we put into understanding and helping them overcome challenges forces us to open our minds and look at things differently. We find better ways to ambulate, communicate, initiate, and achieve our “best outcomes” not only within our four walls but also to creatively serve people at home, at work, and in the community. Put simply, we strive to do our part in providing a “good life” to those who choose our services.

So to the DSD leadership, Employment First zealots, MnAPSE idealists, and ICI theorists – I am back and there is nothing quite as liberating as pursing something for the greater good. To that end, know that I will do what I can to ensure that Minnesota citizens with I/DD have genuine informed choice that is honored and funded by State.

Bark’s Bytes #34 | What DHS Thinks It Knows From the NCI Survey

Published April 3, 2017

In March 2017, DHS released a data brief on “Employment Choices for People with Disabilities in Minnesota” that summarized – “What We Know” about people with Intellectual or Developmental Disabilities (I/DD).  Recently, DHS has been publicly stating that we know that 50% of people with disabilities want competitive integrated employment; and, in a recent article, Commissioner Piper was quoted as saying – “50% of people with I/DD and 40% of people with physical disabilities who are unemployed want to work”.  I have been told both assertions are based on the most recent results of the National Core Indicators (NCI) Survey and, after reviewing the Minnesota NCI report, can find no data that supports either statement.

Before sharing some of the report results it is important that the reader understands what the NCI Survey is and the following is the language from the “NCI Adult Consumer Survey Outcomes – Minnesota Report 2014 – 2015 Data”.

The National Core Indicators survey is a voluntary effort by state developmental disability agencies to track their performance using a standardized set of consumer and family/guardian surveys with nationally validated measures. The effort is coordinated by the National Association of State Directors of Developmental Disabilities Services (NASDDDS) and the Human Services Research Institute (HSRI).

NCI has developed more than 100 standard performance measures (or ‘indicators’) that states use to assess the outcomes of services for individuals and families, including outcomes in the areas of employment, rights, service planning, community inclusion, choice, health, and safety. In 2015-16 a total of 45 states, the District of Columbia, and 22 sub-state entities were participating in NCI.

The NCI Family/Guardian Survey is used to gather data on family outcomes. It is mailed to families who have an adult family member who lives outside of the family home and receives services from the State Developmental Disabilities (DD) Agency (that is, the survey respondent does not live with the person receiving supports). The survey collects demographic information on the individual receiving services and the person who fills out the survey (the ‘respondent’; usually a parent) as well as information on services and supports received. The survey is continually refined and tested to ensure that it is valid and reliable. 

In 2015-16, a total of 6,173 Family/Guardian Surveys were completed across 14 states. The survey contained six groupings of questions (“sub-domains”) that probe specific areas of quality service provision: information and planning, access and delivery of services, choice and control, community connections, satisfaction, and outcomes. Respondents also had the option of writing open-ended comments concerning their family’s participation in the service system.

States were asked to administer the survey to a random sample of at least 1,200 families, all of whom have an adult family member with a developmental disability who lives outside of the family home and receives at least one direct service or support other than service coordination.

All states mailed out a paper survey to families selected in their sample. A sample size of 1,200 was recommended with the expectation of a 40% return rate or greater (yielding 400 or more usable responses per state). However, most states decided to sample more than 1,200 families, expecting a lower response rate than 40%. A final sample size of 400 would guarantee a +/- 5% margin of error and a 95% confidence level when interpreting the results. Both the confidence interval and margin of error used are widely acceptable standards for reviewing results, regardless of population size. States with fewer than 1,200 potential respondent families were instructed to send surveys to all eligible families. With response rates lower than expected, we also included in our national reports those states that submitted fewer than 400 surveys up to a margin of error of no greater than +/- 7%. 

The NCI Family/Guardian Survey is a tool for assessing system-wide performance. It is not intended to be used to monitor individuals or providers. The NCI Statewide Average should not be interpreted as defining or providing a benchmark for “acceptable” levels of performance or satisfaction. Instead, it describes average levels of performance or satisfaction across the State; it is up to public managers, policy-makers, and other stakeholders to use the data to determine programmatic and policy-related priorities.  (End of description)

 

While Minnesota was asked to survey at least 1,200 families, it is unknown how many surveys were actually sent to families by DHS.  At most, it appears they had 404 respondents to the employment domain which is .0027% (404/150,262) or less than 3/10ths of 1% of the state’s total population of people with I/DD (2nd bullet below) and only 1.6% (404/26,000) of the people served in supported employment settings.  So, based on the NCI report, what does DHS think it knows?

1. Apparently DHS believes that – “Throughout the world, paid work is a crucial aspect of culture and identity.  Many people organize their lives around their jobs.  Employment helps define a person’s place in the community.”  Because I am not sure that paid work is a crucial aspect of the aborigine culture and identity, or many others, I will confine my thoughts to the State of Minnesota beginning with findings from two independent public sources.

  • From the “StateData:  The National Report on Employment Services and Outcomes 2015” published by the Institute for Community Inclusion at the University of Massachusetts Boston; in 2014, Minnesota had a total population of 5,457,000 of which 3,217,676 were of working age (16-64) with only 2,603,597 or 81% employed.
  • From the same report, a total of 150,262 or 2.7% of the total population had a cognitive disability (I am going to use the term I/DD).  When applied to the working age group of 3,217,676 (bullet above), the result is an estimate that 86,877 people between 16 – 64 have an I/DD.  If the norm is that only 81% of working age adults without a disability are employed, then only 70,370 Minnesotans with I/DD would be the norm expected to work.
  • In school year 2010 – 2011 the Minnesota Department of Education reported an unduplicated count of 24,130 special education students ages 16 – 21 (more recent data could not be found).  Subtracting that group from the 70,370 people with an I/DD projected to be working (2nd bullet) leaves 46,240 people with I/DD between the ages of 22 – 64 that should, by all accounts, be employed.
  • From a 3/27/17 presentation by Vikki Wachino, former Director of CMS, 2 of 5 people with disabilities are funded by Medicaid (MA).  Applied to the 22 – 64 age group results in 18,496 working age adults with disabilities funded by MA and closely matches the number of people with disabilities served in Day Training & Habilitation programs.  It also likely means that the balance of 27,744 working age adults (22 – 64) with disabilities not funded by MA (60%) are working independently without formal I/DD support services.

2. DHS message – “Only 26% of them had a paying job in the community”.

Report finding – of 404 respondents, 105 had a paid job in the community which is 26% and 9% higher than national average.

My interpretation – why doesn’t DHS acknowledge how successful Minnesota providers have been in finding competitive integrated work for people with I/DD long before they approved the employment first policy.

3. DHS message – “Among those without a paid job in the community, 59% wanted one”.

Report finding – of 140 respondents without a paid job in the community, 82 wanted a paid job in the community (10% higher than national average).

My interpretation – if 105 respondents have a job in the community (item 2), then 299 do not (404 – 105), and if only 82 “wanted one” this is 27% of the respondents not the 59% reported.  Also, it is important to remember that most of the respondents are likely to be the most capable and motivated to complete the survey creating a self-selection bias that results in higher “wanted” responses than would be found in a non-biased group.

4. DHS message – “Most people told us they like their paid community job (91%), but when asked if they’d rather work somewhere else, many (26%) said they would rather work somewhere else”.

Report finding – If 105 respondents have a paid job in the community (item 2), and 26% of them would rather work somewhere else, that is 27 people which is only 7% (27/404) of all respondents.

My interpretation – in my view 7% of the respondents does not rise to the level of “many”.

5. DHS message – “Similarly, most agreed they liked their day program (86%), but even though they like their program, 35% of those told us they would rather be doing something else”.

Report finding – of the 267 respondents attending a day program (17% lower than national average), 35% or 93 people, would rather be doing something else which is 23% (93/404) of all respondents.

My interpretation – Again, why doesn’t DHS acknowledge that our numbers served in supported employment services is significantly less than the national average and; exactly what is “something else” because if it has anything to do with playing golf count me as part of the 23%.

As most know, anyone can twist the numbers to support their position – as I have in this editorial – and the NCI report makes it clear that the data is “not intended to be used to monitor individuals or providers” and it is up to “public managers, policy-makers, and other stakeholders to use the data to determine programmatic and policy-related priorities”.  With results from only .0027% of the population, and instructions that findings are not to be used to monitor individuals or providers, why the message from DHS that “50% of people with I/DD and 40% of people with physical disabilities who are unemployed want to work”?  Also, I don’t remember any meetings between public managers, policy-makers, and other stakeholders on how to use the NCI data to determine programmatic and policy-related priorities?

Instead, what we have is a bureaucracy determined to prop-up its flawed philosophy found in the employment first policy that “all working age Minnesotans with disabilities can work, want to work, and can achieve competitive integrated employment” despite an independent data source showing that only 81% of working age adults without disabilities in Minnesota are employed.  Furthermore, from the early outcomes of the WIOA section 511 process, anecdotal results suggest that less than 15% of clients served in supported employment programs are interested in even considering competitive integrated work; and, I suspect, fewer still will actually pursue competitive integrated work when they fully understand the realities of that choice.

Let me be clear, I support individualized services and when a client expresses a desire to explore competitive integrated work that preference should be honored as it is routinely occurring in supported employment programs.  With less than 26,000 people served by less than 150 providers one would think that if DHS truly wanted to know how people with I/DD felt about the quality of their lives we could easily get that data and not rely on some national report based on .0027% of the population.  The question is – when is DHS going to stop issuing byzantine quotes and genuinely listen to what people with I/DD and their families want so that new services can be added without diminishing current options?