Don’t sweep aside concerns, delay plan until it is done

Editor’s note: Mattson is a disability advocate, special education professional, court-appointed guardian and licensed care provider. Mattson has followed the […]

Susan MattsonEditor’s note: Mattson is a disability advocate, special education professional, court-appointed guardian and licensed care provider. Mattson has followed the progress of the Minnesota Olmstead complianc issues since 1999 and has monitored the current activity on the creation of the newest plan. Mattson’s greatest concern is that this current plan effort, as past movements, will be swept aside and/or prolonged to such an extent that the necessary, significant changes fall by the wayside. This draft proposal of the Olmstead Plan misses the “elephant in the room” and needs to include, from the first day of implementation. The following is excerpted from her comments on the most recent draft.

Date: August 19, 2013
Re: Commentary on the Olmstead Plan Draft – Minnesota

Dear Members,

I have been carefully following the progress of the Olmstead compliance issues in Minnesota since 1999 and most certainly since Jensen v Settlement in 2011 and the current activity on the creation of the Minnesota Olmstead Plan. I have reviewed the Plan draft and the minutes of the sub-cabinet meetings and the first listening session as published. Along the way, over nearly a 40 year period, I have done my fair share of advocacy, receiving from the President’s Commission on Developmental Disabilities the national JFK Jr. Award for cutting edge advocacy. I have engaged in the process of DHS appeals and conciliation meetings. I have continually bent the ears of elected officials locally and at the federal and state level, with the longest history and level of understanding being with Senator Bruce Anderson (formerly Representative Bruce Anderson), hence I am copying him on this e-mail.

I come to you now, with my comments, based upon that history and my professional study and experiences as an educator in the fields of Special Education, Developmental Disabilities, Parent Education, Family Life Education, and Corrections; based upon my experiences as a service provider of In-Home Family Therapy, of Licensed residential and care giving services to families and to people who have developmental disabilities; based upon my experiences as a court appointed guardian, and based upon my continued studies of the Olmstead Act and Civil Rights.

I am pleased to see the inter-agency activity created by Executive Order of Governor Dayton to develop this plan http://mn.gov/governor/images/EO-13-01.pdf . Additionally I am encouraged to see that the news media has helped to bring to the forefront those civil and human rights due to people who have disabilities and that have often been slighted; news media that will continue to cover this issue. Those two factors, along with the Executive Order and closer Federal oversight of the Courts help to build confidence in the potential success of the Plan.

My greatest concern is that this present effort, as has happened with other movements in the past, will be swept aside, and or prolonged to such an extent, that the necessary significant changes fall by the wayside.

That having been said, the draft proposal of the Minnesota Olmstead Plan misses the “Elephant in the Room”; The Plan needs to include, from the first day of implementation:

• a process of transparent meaningful oversight of the implementation of the Plan, with accountability to the consumer,

• a clear measurable demonstration of implementation of the philosophy behind the Plan by all government agents/agencies involved and by all providers accepting tax payer dollars for their services,

• a simplified and most direct means for the consumer to impact the administration, implementation and direct outcomes of the Plan without having to enter what has well been known as a circular bureaucratic run-around within the “system.”

• a plan for training and enlightenment that includes county Human Services Boards, county Human Services Advisory Committees, county Commissioners, government employees, and legislators, as well as consumers and their advocates.

 

The Minnesota Olmstead Plan: 

1. Accountability to the consumer, “to the people we serve”, is expressly written into the DHS Mission Statement. It serves as the very foundation of the Olmstead Act in support of the civil rights of those who have disabilities. Ombudsman Roberta Opheim covers it well, including all nuances, in her video recording available at this link: http://www.youtube.com/watch?v=VRAjAEuUJEE

In the notes from the July 9, 2013 listening session, http://www.dhs.state.mn.us/main/groups/olmstead/documents/pub/dhs16_177874.pdf  Daniel Olson, PCA expresses the sentiment when he urges the subcabinet to look at “the experiences on the ground”.

Galen Smith of Adapt, MN asks the subcabinet to be bold and to take this opportunity to create a legacy. Chris Bell of DHS comments that the system must be turned upside down and that true integration means being able to make decisions, to get information without jumping through hoops.

Jeremy Rogness of the Minnesota Emergency Communications Team gave an example of how services can change with input from the individuals:  Currently there is no ready and effective means for the consumer, or the consumer’s representative, to evaluate the government agents/agencies that they work with. There is no provision for it in the Plan. In other words, there is no effective measure for the consumer to evaluate the county case manager who holds so many of the “strings” to services, even under this Plan, and/or to evaluate the case manager’s supervisor and local human services agency. There is no effective measure to hold those case managers and that local agency accountable.

Now, the naysayers may argue that consumer safeguards do exist, (see attachment to this e-mail as provided to me by Alex Bartolic, DHS DD Division) however, those safeguards have proven to be less that effective and meaningful to the consumer and are weighted heavily in favor of the agency. a) Statutes exist that grant deference to the administrative agency in any given appeal situation. b) the agency, whether at the state or county level, benefits from the full legal representation of the County Attorney’s office and/or the Attorney General’s Office while the consumer is left to fend for themselves, often with minimal financial, emotional, and knowledge-based resources.c) deadlines and timelines appear to be only for the consumer while there is no adverse action toward the human services agents or agencies if they fail to adhere to a deadline or statute; in fact, if they fail to adhere, the consumer may certainly appeal, and that circles the situation right back through the fingers of the agency whose actions are initially being appealed. d) the listed Surveillance and Integrity Review Section, Office of Health Facility Complaints, Public assistance fraud hotlines, and Vulnerable Adult Reporting do not necessarily address the issues a consumer has with the Human Services agency administration of support programs, and e) the Ombudsman’s Office and the Disability Law Center have their own limitations based upon the high case loads and statutory authority.

In a February 19, 2013 e-mail exchange with Alex Bartolic of the DHS DD Division, I was provided with a one page document of standard Consumer Safeguards previously mentioned as an attachment. and the following, “Aside from the consumer protections, providers have certain rights as outlined in their contracts with counties, or as a DHS enrolled and/or licensed providers. County Commissioners often are resources for their constituents with concerns about county services or staff.” Ms. Bartolic continues to offer, regarding the County Commissioners, (We) “have been working with representatives of teh Association of Minnesota Counties which is comprised of county Commissioners. They are helping to shape what we do, and aer providing information to them on our services and their role as counties.”

With all due respect, the county commissioners, who serve as the head of the local human services agency, under Chapters 393 and 402.02, and who directly appoint and supervise case managers for services provided to persons who have disabilities under Chapter 245B.02, subd 3, and who are to provide direct oversight of the administration of services under Chapter 256B.092 as part of their duties as elected officials, generally minimize those duties to that of rubber stamping the work of the agents. When approached by a constituent who has concerns, or observations, a common scenario is that the Commissioner may check with the county agent or supervisor who then assures the commissioner that they are merely doing what the state DHS tells them to do and/or that they cannot discuss the matter due to confidentiality, regardless of whether the consumer has granted releases to the commissioner. In some cases, the agent or supervisor may attempt to paint the consumer as “just trouble” or a “complainer.” Beyond that, some county commissioners are known to admit that they know a lot about their roads, ditches, and zoning departments, however, when it comes to the Human Services agency, “it is just so big we have to just believe that the agency knows what they are doing.” Interestingly, I have met with that same scenario and philosophy when I approach elected officials at the state level.

Minnesota Chapter 402.03 establishes local Human Services Advisory Committees https://www.revisor.mn.gov/statutes/?id=402.03  The Advisory Committee membership can not include Human Services employees, and one-third of the membership shall be representatives of those persons receiving services. “The Advisory Committee shall appoint permanent task forces to assist in planning for corrections, social, mental health and public health services and each task force shall be chaired by a member of the Advisory Committee.” By nature, an Advisory Committee membership brings to the elected officials the viewpoints of how services are affecting people at the ground level; being the eyes and ears for the Human Services Board out in the community. One would think that this Advisory Committee, statutorily mandated, would also provide some accountability to the consumer, however, the reality is that not all counties have Advisory Committees that operate as statutorily mandated. The agenda is prepared by county employees. The meetings are chaired by county employees. Task Forces, if they exist, are chaired by persons who have vested professional interests in that service area. And, not too surprisingly, I am advised by one new member to a county advisory committee that the expectation from the agency is that Advisory Committee members community role is that of edifying the Human Services Agency.

2. Oversight – In 2004 the Office of the Legislative Auditor conducted an evaluation on the administration of the Federal Medicaid Home and Community Based Waiver in Minnesota. http://www.auditor.leg.state.mn.us/ped/pedrep/0403all.pdf The Auditor’s office came up with many of the same concerns that attempted to be addressed by the draft Olmstead Plan. The Auditor recognized that the voice of the consumer was not really recognized, in fact, the Auditor noted that a fault in their own audit was a failure to solicit the views of the consumer. Still, the Auditor made recommendations that included the need for more close oversight by the legislature and also how the state level of DHS was to provide specific oversight of the county agencies. The Auditor was assured by DHS Commissioner Goodno that the agency would get right on with those plans. A year later, in a one page update to the Auditor’s office, Commissioner Goodno explained that the Department had started to implement those recommendations, found them to be “too time consuming”, and so the Department stopped. And here we are, going on a decade later, rehashing some of the same issues, and with no clear meaningful oversight for the meaningful implementation of the Plan.

Further, those who live with disabilities, readily recognize that some county case managers and supervisors seem to subscribe to a philosophy of control, intimidation and retaliation; not all county case managers and supervisors, but enough of them to create major havoc in the lives of people who have disabilities. Ombudsman Roberta Opheim recognized this phenomena in her written submission to the William Mitchell Law Review in 2005 http://www.wmitchell.edu/lawreview/Volume32/Issue1/9Opheim.pdf . Ombudsman Opheim is addressing a phenomena within the Child Protective system when government agents do not follow the law and or/when agents openly practice vendettas on those who oppose them. This is no different from those experienced by those who support people who have disabilities. This would include self-advocates, advocates, guardians, and often providers of services who have experienced retaliation or intimidation from the county agent or supervisor when the agency is opposed. Providers, who themselves should be advocating for the rights and well-being of consumers, are far too often in the position of tempering their advocacy under the realization that the county agency/supervisors have an inherent control over their livelihood through referrals and contracts.

Ombudsman Opheim, in her writing for the William Mitchell Law Review, is clear to state that:  When Government Does Not Follow The Law In Minnesota, state agencies like the Department of Human Services believe that their role is to work collaboratively with the counties who are responsible for delivering services. While in theory this service system should work well, in practice it fails in many ways. What happens when a county chooses to ignore the law or refuses to take the time to adequately train its employees?

History has shown that counties are not held accountable when they fail to follow the law. There are few, if any, administrative, legal, or financial sanctions which can be applied by the state against the counties

She adds: The Ombudsman’s Office acknowledges that there are many conscientious workers at all levels of the social service system working hard every day to improve the lives of children. The stories of families and the cases reviewed by the Office, however, reveal that the destructive practices and harmful decisions made by counties contained within this essay are not simply isolated cases.

And she ends with the following: Children with mental and behavior disorders are growing and changing every day. These children suffer daily and can not wait for the system to slowly evolve. In the end, the emphasis should be on meeting the needs of children, rather than the county, the workers, the service providers, the judges, the attorneys, the therapists, or anyone else who is entrusted to serve children.

Alex Bartolic, of DHS, in her February 19, 2013 e-mail exchange with me offers, “We haven’t found a specific statutory protection against retaliation or vindictive behavior by a county.” and directs me to travel back through the labyrinth of the listed consumer protections that have proven less than effective against the well established bureaucracy.

Senator Bruce Anderson did attempt, as a Representative, to address some of this through the introduction Bill, House Bill HF 2180 His efforts were mirrored by Senator Amy Koch and Senator Steve Dille with SF 1888. An attachment is included with this e-mail. I am not certain on the present status of the Bill. I do know that we met with the woman who was the legislative head of the Health and Human Services Committee at the time and, while she nearly finished our sentences herself as to what our concerns were, indicating that she knew them all well, offered what had become the standard excuse of “It is just such a bit department and this is just how it is.”

3. Implementation of the Philosophy: Anything that I would write here would be reflective of the writing that I have already offered. The philosophy of what is supposed to be happening for people who have disabilities has been spelled out in the ADA, the State Application for 1914 HCBS Waiver (offered as an attachment), The Olmstead Act, and now the order to establish the Olmstead Plan. That the philosophy has eluded many who are in positions of administrative authority, some who may actively turn a blind eye to the philosophy, is disturbing to me and has proven harmful to so very many. In the listening session held on 7/9/13, Joan Willshire of the Minnesota State Council on Disabilities offered that “The Options Too report in 2006 covered many of these same concerns … unfortunately many of these same issues are discussed in the plan today. There should be ongoing monitoring of the plan so that it is implemented and so we’re not looking at these same issues again years later.”

Dan Stewart of the Disability Law Center adds that “Yearly goals in the plan are not high enough.” There are those who might counter that you can’t “turn a ship on a dime”, yet Chris Bell of DHS, in the same listening session, states it should be “turned upside down.” “Turning upside down” can happen quite quickly, most especially in a multi-disciplinary action when all are committed to share the same philosophy…and when those who choose not to go with that philosophy are somehow eliminated. Documented history assures us that it is very likely this present effort will also go by the wayside if it is not transparent, is not given effective oversight, and does not include the consumer as the real focus and who has meaningful choice and authority.

4. Direct means for consumer to impact: The consumer and/or their guardian, under Chapter 256B.092 subdivision 7, https://www.revisor.mn.gov/statutes/?id=256B.092 (among other statutes, laws, and the State Application for the Waiver) are to have significant authority to direct the services. As mentioned before, when that authority is usurped by the government agency, there exist little effective and efficient means to remedy that situation. Further, while the county agency/agents are in the position of conducting assessments on the consumer, there is not an existing meaningful source for the consumer to provide assessment on the actions of the agent. I don’t know what more I can say about that other than the draft Olmstead Plan does not address it either.

5. A plan for training: As mentioned by several in the 7/9/13 listening session, the consumer and their advocates may well be so ingrained in the “what good will it do anyway” philosophy, that they will need training on the notion that true choice in matters such as “living independently is the new norm.” I am personally aware of consumers and their guardians who are scared to take a stand for meaningful choice as they have seen what has happened to people who have stood to advocate or they have been targeted themselves for having done so. They are scared when they know the agents can literally hold their loved one’s life and well-being in the balance.

And county agents need the training and need to know that the consumer has had the training.

The consumer and the county agents need to know that their county commissioners who are supposed to be providing oversight have the training…and that the Human Services Advisory Committees are active and have the training…and that their elected officials on the state level have the training.

The training need not, and should not, come from Human Services. The efforts should be coordinated. The trainers could come from sources such as the Ombudsman’s Office, from the Council on Disabilities, and/or from the state Management Analysis and Development agency that has provided facilitator Judy Plante to the development of this Plan. The training needs to be ongoing, comprehensive.

Thank you for the opportunity to provide this commentary. I look forward to monitoring the developing plan. Should you desire further information from me, do not hesitate to contact me through the information that I provided at the onset.

 

Respectfully,

Sue Mattson

 

________

 

More information can be obtained from:

S.F. No. 1888, as introduced – 85th Legislative Session (2007-2008)

The MN DHS 1915 (c) Waiver

MN Dept. of Human Services Public Documents

MN Dept. of Human Service Consumer Safeguards