Public Comment — Legislative Budget Board on the Health and Human Services Commission Legislative Appropriations Request

TCDD Letterhead

Public Comment to the
Legislative Budget Board (LBB) on the
Health and Human Services Commission
Legislative Appropriations Request
September 22, 2016

Thank you for the opportunity to provide input regarding the Health and Human Services Commission’s (HHSC) Legislative Appropriations Request (LAR). TCDD is established by federal law and is governed by 27 board members, appointed by the Governor, 60% of whom are individuals with developmental disabilities or family members of individuals with disabilities. TCDD’s purpose in law is to encourage policy change so that people with disabilities have opportunities to be fully included in their communities and exercise control over their own lives.

To that end, we provide information to people with disabilities and their families so they can be a part of the process at the state agency and legislative level. As you are aware, the consolidation of parts of the Department of Aging and Disability Services (DADS), the Department of Assistive and Rehabilitative Services (DARS), the Department of Family and Protective Services (DFPS), and the Department of State Health Services (DSHS) into HHSC on September 1, created an HHSC LAR that is massive in comparison to prior biennia. Released to the public Friday, September 16, 2016, the HHSC LAR is seven volumes, 2,458 pages, 64 exceptional items, and 14 budget reduction options to achieve an additional savings of 10%. Yet, for the first time in recent history, the consolidated HHSC made no drafts available for public comment prior to submission to the LBB. Providing people with disabilities less than one week to review materials and make comments renders the process nearly inaccessible to people with disabilities.

Exceptional Item 15 — Interest List Reduction
$346M GR, $803.4M AF

This item says it funds 19,010 “slots,” but does not provide detail about how HHSC is requesting to allocate them across waivers. Therefore, we cannot comment on whether the methodology ensures adequate progress toward interest list reduction, and truly fosters people’s ability to live in the least restrictive environment of their choice. However, with 110,019 unduplicated people waiting for a variety of long-term services and supports, it is important for the public to know the plan for this allocation to determine whether it is meeting the need.

Exceptional Item 4 — Maintain Waiver Caseloads (primarily DD)
$70.2M AF

The LBB’s budget instructions did not allow HHSC to prepare a draft budget request that continues to pay for waiver services that the 2015 Texas Legislature said it funded. This routine practice requires people with disabilities to make multiple requests for the same services. If not funded, people expecting waiver offers in 2017 will not receive them or people who are receiving services at the end of the biennium, particularly in the HCS waiver program, will lose their waiver services on August 31, 2017.

Exceptional Item 38 — Attendant Wages
$156M GR, $364M AF

Despite strong effort from advocacy and stakeholder groups, attendant wages remain unacceptably low. An adequate living wage is essential in combating turnover and attracting quality direct support professionals. While the attendant wage request for a 6.25% increase is warranted, a wage floor of $8.50 should be revisited and increased.

Exceptional Item 6 — Maintain ECI Caseloads
$44.76M AF

Funding for this exceptional item is to maintain FY 17 Early Childhood Intervention (ECI) caseloads. Federal Individuals with Disabilities Education Act (IDEA) Part C regulations require all children determined eligible for the program to be served. To reduce state funding for the program, the Texas Legislature narrowed ECI eligibility criteria in FY 12. We are concerned the LBB still has not approved the DARS/HHSC request to finish funding the program for FY 2017. The absence of those funds in the base could cause decision makers to further narrow eligibility criteria.

Exceptional Item 40 — Day Habilitation Compliance
$30.6M GR, $70M AF

This item is included to bring Texas into compliance the Centers for Medicare and Medicaid Services (CMS) Home and Community-based Services (HCBS) Settings Rule because traditional day habilitation programs are segregated and facility-based. This item should support a system of “meaningful day activity options” for waiver participants, rather than segregated day habilitation programs. Without the requisite detail regarding what is included in this item, we would be concerned if the primary proposed strategy to address this issue is to give waiver providers and their subcontracted day habilitation providers rate increases when those funds could be used to transform and pay for a system of meaningful day activities.

Meaningful day activities should be predicated on Employment First principles, as most people with disabilities report they would like to work. While employment assistance (aid in finding a job) and supported employment (support in keeping it) are available to all HCBS waiver participants, they are not being used. This reflects a service planning process that fails to reflect the true person-centered preferences of waiver participants and also should be addressed in the HCBS Settings Rule Statewide Transition Plan. FY 15 billing data indicates less than 3% of the more than 30,000 people using HCS and Community Living Assistance and Support Services (CLASS) waiver programs had either of these services authorized in their individual plans of care. Texas is an Employment First state, and TCDD believes funding must be adjusted to reflect this.

The Children’s Policy Council, the Employment First Task Force and the IDD Statewide Redesign Advisory Committee have approved specific recommendations to improve day habilitation. Their reports were submitted to HHSC and are expected this fall. Their recommendations included:

  • Ensuring that all waiver participants in all settings have access to day habilitation as a consumer directed service in addition to the flexibility for peers to pool funds currently paying for day habilitation; and

  • Prohibiting employers of record from also providing day habilitation services, as recommended by the Department of Labor’s Advisory Committee on Increasing Competitive Integrated Employment for Individuals with Disabilities;

  • Requiring service providers to complete a registration and credentialing process, to include annual on-site reviews. This would enable participants and their family members to make more informed choices on providers, as well as help ensure meaningful day services are being provided.

  • Requiring service planning teams to inform Medicaid waiver participants that they may choose to decline or include day habilitation services on their individual plans of care;

  • Citing providers who fail to make a good faith effort to provide day habilitation services for individuals who “do” wish to receive these services but cannot find day habilitation providers willing to accept them into their program.

EXCEPTIONAL ITEM 29 — SSLC Business Plan Expansion
$19.3M AF

This item funds staff to operate clinics at 12 state-operated SSLCs for people intellectual and developmental disabilities (IDD) in community based settings. SSLCs would leverage their existing space and staff. Although additional resources are required for SSLCs to exercise existing statutory authority to sell SSLCs services, DADS is initiating a pilot program in September 2016 to offer limited services at two SSLCs. The Promoting Independence Advisory Committee, responsible for oversight of appropriate care settings, was not briefed regarding this pilot at their most recent July 21 meeting, nor was this pilot included in the HCBS Setting Rule Statewide Transition Plan required by CMS. Therefore, we question whether proposed pilot practices such as paying for SSLC dental services with HCBS waiver funds requires CMS approval and/or heightened scrutiny.

Any SSLC service provided to HCBS waiver participants should prove substantial compliance under the DOJ agreement for the service made available. Implementation without meeting this stipulation could put SSLC residents at risk by stretching staff resources to provide these new services. Furthermore, the sections of the facility being used for community services should be required to meet accessibility standards under Americans with Disabilities Act, and clinics located at SSLCs should be required to meet the same clinical, regulatory and building standards required for any new community based facility.

Exceptional Item 29 — New SSLC Construction
Texas does not require 13 SSLCs for the 2,795 people expected to continue to choose to use them as anticipated in the LAR. Texas should plan for consolidation and closure, rather than the construction of new facilities that would reproduce the same quality of service and be subject to Department of Justice oversight. The Council continues to support a moratorium on admissions and other recommendations to reduce the SSLC infrastructure and rebalance the long-term services and supports system. The failure of Senate Bill 204 and inaction on the part of the 84th Texas Legislature to address this unsustainable system belies substantial evidence that Texas must act to modernize the IDD service system and reduce reliance on SSLCs.

Exceptional Item 26 — IBI for People with Autism
$14.3M GR, $32.8M AF

This item would fund a new Intensive Behavioral Intervention (IBI) program/service to address the needs of people with Autism Spectrum Disorder (ASD). The plan appears to be to outsource the development and initial implementation to a private contractor. If this is the case, enabling legislation should include provisions for meaningful stakeholder input and policy development to address parameters around aversives and the definition of ‘intensive’ in this state defined benefit.

Thank you for the opportunity to provide input on behalf of the Texas Council for Developmental Disabilities.

Respectfully submitted,


Jessica Ramos,
Public Policy Director