Committee Meeting Information

June 12-13, 2006

Wyoming State Training School

Lander, Wyoming

 

Committee Members Present

Representative Elaine Harvey, Chairman

 Senator John Hines

Senator Mike Massie

Representative Rosie Berger

 

Committee Members Absent

Senator Hank Coe, Vice Chairman

Representative Bruce Barnard

Representative John Hastert

 

Legislative Service Office Staff

Gerald W. Laska, Staff Attorney

Don Richards, Senior Research Analyst

 

Others Present at Meeting

Please refer to Appendix 1 to review the Committee Sign-in Sheet
for a list of other individuals who attended the meeting.

 

Executive Summary

The Committee heard testimony from service providers, Protection and Advocacy, Inc. and Department of Health officials regarding waiting lists and out-of-home placements under the home and community based waiver programs.  The Committee heard testimony from providers, the Department of Health and the Governor's Planning Council on Developmental Disabilities regarding the appropriate roles of the Wyoming State Training School and community-based providers in delivering services to persons with developmental disabilities.  Department of Health officials provided an update regarding actions in response to the Management Audit Committee's recommendations.  The Committee toured the WSTS facility and two local service provider locations.  The Committee will review proposed legislation at its next meeting to update WSTS statutes and to create a fund for servicing emergency cases in the home and community based waiver programs.  The next meeting will be held during the latter part of September at a time and place to be announced.

 

Monday, June 12, 2006

 

Call To Order

Chair Harvey called the meeting to order at 8:05 a.m.  The following sections summarize the Committee proceedings by topic.  Please refer to Appendix 2 to review the Committee meeting agenda.

 

Approval of Minutes

Senator Massie moved approval of the minutes from the April 20, 2006 Select Committee meeting.  The motion carried unanimously.

 

 

Waiting Lists and Out-of-Home Placements

LSO staff distributed a letter, with attachment, (Appendix 3A-B) from Ruth Summers, Regional Services Providers of Wyoming, regarding the organization's concerns over the community service delivery system.

 

Tom Robeson, Protection and Advocacy, addressed the Committee.  He stated that  transition issues are still a problem.  Transition procedures should be uniform, enhance options, and provide for community inclusion.  An informed choice of out-of-home placement is critical when transitioning out of a home.  Suggested improvements include targeted case management to avoid waiting lists.  Staffing is a continuing concern, potentially causing a lack of adequate supported care.  Bonuses for success are a possibility.

 

Mr. Robeson noted the department should have a timeline for service delivery – contact with the state/case manager, completion of ICAP testing, doctor evaluation, application to the waiver, and review by the WDH.  This activity should all follow a stated timeline, perhaps 3-6 months total, before commencement of services.

 

Shawn Griffin, Community Entry Services, a local provider, stated that his company provides substance abuse and local programming, not just waiver services.  In Mr. Griffin's view, there is a waiting list now-one for residential services.  Mr. Griffin noted that access to supports should be made available equally to all.  Currently, only those cases determined to be emergencies are considered.  Mr. Griffin encouraged the Committee to look at waiting lists. 

 

Mr. Griffin expressed concern regarding implementation of the seven percent appropriation increase for provider salaries.  He indicated there is dispute over whether these funds should be distributed for direct care salaries only, or to salaries and salary related expenses.

 

Senator Hines asked if the increase followed the same pattern as prior appropriations for provider salary increases.  Mr. Griffin replied that between "footnote 9" and now, there was a day/residential/vocational habilitation increase from the Department of Health.   The increase was applied to those rates and the providers would pass it on in salaries.  The providers were not applying the increased payment only to direct care staff salaries, but also for other expenses such as health benefits, retirement, overhead, utilities, buildings, staff training, background checks, overtime related to staff vacancies, etc.

 

Senator Massie asked, if the Legislature were to provide sufficient funding for staff salaries, what assurances does the Legislature have that the funding would be spent in that manner.  Mr. Griffin stated that the providers could implement a tracking system to follow those funds.

 

Representative Berger asked when the inflationary salary increase (3.5%) would be acknowledged by staff.  Mr. Griffin replied that there is no consensus on what that amount would be and where the money should go. 

 

Cliff Mikesell, Administrator, Developmental Disabilities Division, addressed the Committee.  He stated that the Select Committee recommended a seven percent across the board increase in waiver services compensation.  The footnote added by the Joint Appropriations Committee, however, was different from the Select Committee's recommendation.  In a meeting with the regional service providers, they requested an Attorney General opinion to see if the funds could be used for more than direct salaries.  A formal opinion was requested but has not been issued.  Roughly 60 to 70 percent of the $12 million would be needed for a seven percent increase in the salaries of direct care employees, according to Mr. Mikesell.

 

Senator Massie asked why, since it appeared to be boilerplate language that had been used in the past appropriations, indicating a specific percentage increase, there is an issue this year.  Mr. Mikesell replied that confusion was created when WDH asked for an interpretation of the language, after receiving reports that some employees did not receive the increase and that some funds were used for overhead and benefits.  The Department did a survey by social security numbers and had reason to question whether the funds were only going to direct care salaries. 

 

The Committee generally discussed the members' intent that the appropriation increase be used only for salaries and directly related expenses such as payroll taxes.

 

Mr. Mikesell next advised the Committee that it appears there may soon be a waiting list for waiver services and that the Department has already been contemplating rejections for next biennium.  If a waiting list were started July 1, there would be approximately a $1 million surplus for emergencies and extraordinary care, with nothing at all for out-of-home placement.  There is no funding for the real choice waiver, according to Mr. Mikesell.  The Division had made a request for funding in this area, but that request never made it to the Governor’s Office.

 

Senator Massie requested that the Department provide a fiscal analysis showing what is  needed to fully fund waiting lists, out-of-home placements, and emergencies over the '07-'08 biennium.  Mr. Mikesell agreed to supply that information.

 

Chairman Harvey expressed continuing concern about a lack of criteria for determining out-of-home placement eligibility.  Mr. Mikesell replied that clients are funded in place.  The Division pays for supervision, not room and board. 

 

Mr. Mikesell next addressed the issue of unnecessary restraint.  The Department of Health hosted a conference in Thermopolis, with nationally recognized speakers, to open up a dialog to see what other states are doing in pursuit of the national movement to minimize or eliminate restraint and seclusion.  The Center for Medicare and Medicaid Services asked Wyoming to remove “seclusion” from its service plan. 

 

Betty Lieth next addressed the Committee.  Her daughter is a client a the Wyoming State Training School and getting wonderful care there in the Visions program.  She recognizes that the Committee wants clients mainstreamed into the community and this is exactly what is happening at WSTS.  Her daughter is in a group home environment, where some go to Riverton to work; others work at the school.  She stated that she is impressed with the WSTS and hopes the state can keep that organization going.  Ms. Leith distributed copies of a letter to the Committee members (Appendix 4).

 

John Holdrecker, Mountain Regional Services in Evanston and Cheyenne, told the Committee that staff turnover is not just in the boom areas.  His program has had 322 people leave the company in the past year, 106 of which were in Cheyenne.  Now there is a proposed rule to prohibit hiring 17 year-olds.   If this becomes policy, roughly 40 people I will have to be let go, according to Mr. Holdrecker. 

 

Chris Hasslem, parent of a 20 year old with Down's Syndrome, expressed concern about out-of-home placement and the waiting list.  His son may not be able to transition to the adult waiver if there is a waiting list.  He wants to be independent and move out, but the family does not have the funds to support him.  He also needs supports, which would be very taxing for our family, according to Mr. Hasslem. 

 

G. William Day, Jr., a participant in the Visions Program at WSTS, told the Committee that the school has been very good for him and he has received a lot of therapy in the program for about eight years now.  

 

 

Background and Discussion of Services Offered by the WSTS

Senator Cale Case addressed the Committee and expressed his delight that the Committee came to Lander.  He distributed a copy of a paper entitled "The Wyoming State Training School is not an Institution and Choice is a Good Thing" (Appendix 5).  He stated that he spent a lot of time at WSTS, as a volunteer and employee.  He believes the Committee members will decide that there is a place for WSTS services.  The facility is not a threat to service providers, and it can be used as a resource to help a lot of people.  One-third of the employees of the Department of Health work at WSTS.  Since ’92-93 there has been a mission to close the facility, but there is a desperate need for it.  Senator Case highlighted some of the school's programs, including the Visions program for brain injured persons and the adaptive equipment facility.  It is not possible to provide the level of care offered by WSTS in every community, according to Senator Case.  He noted that the census in the program is 87, while the lawsuit settlement authorized 161 residential slots. 

 

Superintendent Diane Baird Hudson addressed the Committee with a Powerpoint presentation (Appendix 6).  There are approximately 450 FTEs at WSTS.  The school's two primary services are as an Intermediate Care Facility for the Mentally Retarded (ICF/MR) and the Visions program for brain-injured persons.  Residents live in small group homes on campus, which allow for vacations, spiritual life, education, and family visits. 75% of residents use wheelchairs; about  60% use psychotropic medications.  Staff vacancy rate is 10-12%.  In the late 1960s, WSTS had a population of over 750.  At the time of the 1990s lawsuit, it was around 400.  The current number of residents is 87.  The role of WSTS could be expaned to long-term care nursing services, extraordinary care services, and high level respite care, according to Ms. Baird Hudson. 

 

Ms. Baird Hudson noted a need to statutorily change the facility's name and to include in the statute the  programs housed on the campus; to promulgate rules for the new law; and to include more appropriate language changes pertinent to individuals with developmental disabilities or learning challenges. 

 

In answer to Senator Massie's questions, Ms. Baird Hudson stated that about 7 or 8 residents have been admitted to the WSTS since the Weston lawsuit, with a few more who left and came back.  Most residents are referred because the severity of their diagnosis makes their level of care too high for community programs.

Some are referred directly from nursing homes.  Almost every resident except one is involved in regular activities in the community, some weekly, some less often.  A few are employed off-campus, while most have paid employment on campus.  Staff salaries are about the same as the private providers'. 

 

In response to questions from Representative Berger, Ms. Baird Hudson stated that the staff ratio is about 400 employees for 100 clients. Two staff are provided each shift for high needs residents, with one for each shift for clients with somewhat less extensive needs.  WSTS has had no pressure sores in residents for 20 years and very few respiratory complications. 

 

Luncheon Recess

The Committee adjourned for lunch and reconvened at 1:25 p.m.

 

WSTS Statutes and Rules

Brenda Oswald, Governor’s Council on Developmental Disabilities, addressed the committee with a PowerPoint presentation (Appendix 7) and distributed copies of:

·         2005 Community Forums Summary Report (Appendix 8);

·         Wyoming Governor's Planning Council on Developmental Disabilities – 2005 Annual Report (Appendix 9);

·         Proposed changes to Training School Act of 1981 (Appendix 10);

·         Copy of "Planning for the Future" report dated September 1, 1988 by The Accreditation Council on Services for People with Developmental Disabilities (Appendix 11);

·         Copy of "People First: A Report on the Wyoming State Training School, Lander, Wyoming" dated December 30, 1988 by David Ferleger (Appendix 12);

·         "Weston Principles; Stipulated Agreement: Weston, et al. v. Wyoming State Training School" (Appendix 13); and

·         Pamphlet:  "What Do You Call a Person with a Disability"  (Appendix 14).

 

Ms. Oswald reviewed the history of the Wyoming State Training School, changes in its mission and population and effects of the Weston decision.  She urged the Committee not to require clients to return to the State Training School for evaluation or training or anything else.  Even though the State has an investment in people and real estate here at WSTS, those services should be offered to clients in an elective manner that respects client dignity, according to Mr. Oswald.  

 

Ms. Oswald introduced Jordan Christopher Yeager, who addressed the Committee.  Mr. Yeager stated that he was born with Down's Syndrome on Dec. 25, 1986, and has been a recipient of community based services.  He discussed his trip to Washington, DC, with the "Close-Up" Program and distributed photos and a written summary of the trip.  (Appendices 15, 16).

 

Ms. Oswald advised the Committee to build an inclusive framework for Wyoming's young people with disabilities; to build on self-determination principles that presume competence and need for supports rather than a medical model of care; and to view problems as community issues rather than segregated issues that only affect one population.  She advised the Committee that the statute should be revised first, then appropriate rules written to implement WSTS's role.

 

Senator Massie stated that he would consider any pre-admission criteria suggested by Ms. Oswald, Ms. Baird Hudson, or others, but cautioned that the legislature walks a fine line between appropriate guidance and  micromanagement.

 

Senator Massie asked if any of the current clients at WSTS are there against their will or had to come back against their will.  Brenda Oswald stated that the answer would depend on whether the family makes the decision or the client makes the decision.  The client themselves do not always want to be there, according to Ms. Oswald. 

 

Senator Massie stated that the State wants to develop a system where the first choice is the community, but if WSTS is not available as a safety net, then what safety net should be created?  It is not practical to   require that all persons applying for community services must be accepted by community providers. 

 

Ms. Oswald replied that we are going to have to put in place a system for choice and perhaps require cause for dismissing clients.  One recommendation is to have several smaller state run facilities, where programs are not available through community providers.  It is something out of the box for Wyoming – like a smaller ICF/MR (Intermediate Care Facility for Persons with Mental Retardation). 

 

Representative Berger asked if there had been research into the systems of other states that have closed their centralized state institutions.  Ms. Oswald stated that she did not have that information immediately available. 

 

The Committee adjourned for the day at 2:50 p.m. in order to go on a tour of the WSTS facilities.

 

 

Tuesday, June 13, 2006

 

The meeting was called to order by Chairman Harvey at 8:00 a.m.

 

Chairman Harvey requested that staff review the language of the 2006 budget footnote regarding the appropriation for provider staff salary increases.  Don Richards, Senior Research Analyst, distributed copies of the relevant language, along with samples of similar language used in prior legislative sessions (Appendix 17).

 

Senator Hines stated that the Joint Appropriations Committee thought that the overall appropriation to WDH was sufficient to carry from July 1^st until the 2007 General Session, at which time it could be re-evaluated.  Senator Massie added that the Legislature could clarify the intent regarding the use of the funds for salary increases if the Attorney General's opinion is contrary to the Committee's intent.  Senator Hines also requested that staff look into the use of the terms "salary" and "compensation," perhaps for the use of another committee such as the Joint Appropriations Committee.

 

 

Update on Management Audit Recommendations

Dr. Brent Sherard, Bob Peck and Cliff Mikesell, Wyoming Department of Health ("WDH"), addressed the Committee.  The distributed a written report on the progress of the Developmental Disabilities Division in implementing the recommendations of the 2004 Legislative Audit Committee.  (Appendix 18). 

 

Dr. Sherard commented on the criticism that WDH spending was out-of-control and beyond its statutory authority.  He stated that  new controls were implemented and the budget is in much better shape especially in the Medicaid and prescription drug program areas.  The budget process now emphasizes transparency, and noted that the average tenure of WDH directors has been 2.5 years while it takes 3-5 years for any director to understand the intricacies of the budget.

 

Dr. Sherard stated that he is very happy with the Department's response to the Management Audit.  New rules for the waiver programs of  the Developmental Disabilities Division have been proposed, with the public comment period ending July 21^st.   He hopes the new rules are workable for providers while ensuring  transparency of department operations.  Dr. Sherard reported that an RFP has been issued to review the DOORS case budgeting model; at least two contractors are interested.  The Department also hosted a conference for family members  recently on the real choice support waiver. 

 

Representative Harvey asked how the Department planned on dealing with footnote 5 in the 2006 budget, regarding wage increases for providers' employees.

 

Bob Peck, CFO, WDH stated that this footnote has been problematic.  He stated that he did not agree with the Budget Office interpretation that the funds could be used for salary only and not related costs such as taxes and wage-based insurance premiums.  Mr. Peck's opinion is that it is not WDH’s responsibility to determine how providers use the funds, only that the contracts should be calculated based on the 7% wage increase.  According to Mr. Peck, WDH  is prepared to provide a 7% increase on the IBAs for direct care providers, contingent on receipt of an opinion from the A.G.  If the opinion from the Attorney General comes in contrary, WDH will need to adjust its position accordingly.

 

Senator Hines questioned why the Budget Office raised questions this year if the same language has been used for years, especially since he is not aware of complaints or questions as to how similar appropriations were handled in the past.  He did not believe that payroll taxes have ever been separately appropriately.

 

Mr. Peck explained that there was an event that changed the Budget Office thinking.  The event was the 3.5% increase for executive branch employees in the current biennium, where it was determined that funds were appropriated for salaries only, not the resulting payroll tax increases.  WDH had sufficient other unexpended funds to cover the taxes, but the providers operate on a very tight budget. 

 

In response to a question from Senator Massie, Cliff Mikesell explained that the plan is to calculate the contract amounts with a 7% increase  upon the IBA for direct care services, meaning day and residential habilitation.  The children's and ABI waivers will also be increased for services such as respite care

 

The Committee discussed generally the rule adoption process, specifically how WDH responds to or incorporates public comments received in response to proposed rules.  Representative Harvey stated that one particular concern she was aware of was the proposed new prohibition on the employment of 17 year-olds.  The Committee also requested that staff prepare a brief explanation of the rule-making and review process for the next meeting.

 

The Committee next discussed funding for emergency cases.  Dr. Sherard replied that WDH has recently installed software to track expenses and initiated the Extraordinary Care Committee.   According to Mr. Mikesell, there is no specific line item in the Department budget for emergency cases; it has always been built into a broad category of services.  However, WDH would appreciate the Committee's guidance on that topic.

 

Senator Massie suggested that the WDH could implement something similar to the Department of Education's previous emergency fund, with designated criteria and reporting requirements.  Mr. Mikesell stated that, in the meantime, he has made sure that there are reserve funds for people with critical needs.

 

Senator Hines agreed that a specific fund with guidelines and reporting requirements would be preferable to inter-program transfers to cover emergencies.

 

Presentation by Dr. David Braddock, University of Colorado

 

Dr. David Braddock, Professor and Chair of Psychiatry at the University of Colorado School of Medicine and Executive Director of the Coleman Institute for Cognitive Disabilities, addressed the Committee.  He distributed a handout entitled "Comparison of 'Comprehensive' Waivers and 'Support' Waivers" (Appendix 20).  He made a PointPoint presentation entitled "The State of the States in Developmental Disabilities and Emerging Technologies" (Appendix 21), in which he reviewed: the history of treating persons with disabilities in the United States and Wyoming; the trend toward decreasing institutionalization and increased use of home and community based waivers; Wyoming as a benchmark versus national trends; the increased utilization of private service providers; types of support provided under waiver programs; national and Wyoming spending on developmental programs as a measure of 'fiscal effort"; factors influencing demand for developmental services; the role of technology in serving persons with cognitive disabilities.

 

The Committee discussed generally with Dr. Braddock the difficulty in implementing high-technology in rural states like Wyoming and the continuing need for institutional care of those few people with severe developmental disabilities.

 

Luncheon Recess

The Committee adjourned from 11:30 a.m. to 1:30 p.m. for lunch and a tour of local area regional service providers.

 

WSTS Statutes and Rules (continued from previous day)

The Committee continued its discussion with WDH's Brent Sherard, Bob Peck, Diane Baird Hudson and Cliff Mikesell concerning updates to rules and statutes.  WDH advised that the rules for the Developmental Disabilities Division's waiver programs are nearly finished, but that the rules for the Wyoming State Training School have not been started because it was believed the statute should be updated to reflect the current status of the school before rules could be drafted.  

 

Representative Harvey noted that the rules were mandated in 1981 but have never been written, and that the Management Council wanted the rules proposed before the next session.  Senator Hines and Senator Massie agreed that, at the very least, rules on eligibility criteria for WSTS should be written as soon as possible. 

 

Dr. Sherard concurred that basic admission criteria, monitoring and discharge procedures could be done now would assist the Department and clients. 

 

The Committee discussed its remaining schedule and report deadlines, the need to integrate community and WSTS services, and cooperation among the private providers, WDH and the Governor's Planning Council.   The Committee also discussed possible alternative roles for WSTS, including continuing residential service for persons with the severest disabilities, and providing of technical assistance and community outreach, all with better integration among private providers, the Developmental Disabilities Division and WSTS.  

 

Senator Massie recommended a bill draft for the Committee's next meeting.  The bill should:  modernize the language of the WSTS statutes as recommended by the Planning Council; specify eligibility criteria for WSTS; and provide for a report from WDH on why WSTS clients cannot be served in their respective communities.  He suggested that the provider community work with WDH as a task force to prepare recommendations for Staff to incorporate into a bill, at least three weeks before the next scheduled Select Committee meeting.

 

The Committee discussed various budgetary methods of creating a fund for emergency waiver cases, whether by line item in the regular budget, by JAC amendment, by budget footnote or by stand-alone bill.

 

Senator Massie, seconded by Senator Hines, moved for a bill draft to create an emergency fund.  The motion carried on a voice vote.  

 

The Committee agreed that future appropriations containing funds for caregivers' salaries should clarify whether the appropriated amount is for salaries alone or includes funds for related taxes and insurance.

 

Senator Massie reminded Mr. Mikesell that the Developmental Disabilities Division is to report on anticipated costs for next year's wait list, emergency services and adult waiver services, including out-of-home placements.  Mr. Mikesell also agreed to share the supplemental budget request for those items with the Committee.

 

Don Richards, LSO Senior Research Analyst, advised that the Committee has a report due October 1^st to Management Council, Joint Labor Committee, Joint Appropriations Committee and the Governor concerning adoption of rules, provider reimbursements, pre-school funding and related issues.    

 

Meeting Adjournment

Chair Harvey directed staff to poll the members for a meeting to be held the latter half of September. There being no further business, Chair Harvey adjourned the meeting at 3:00 p.m.

 

Respectfully submitted,

 

 

 

Representative Harvey, Chair