NYSARC joined ALIA, CP of NYS, IAC and DDAWNY, to hold  a series of meeting on a number of legislative issues including legislation to fully restore funding cut from OPWDD voluntary programs in the final State budget for the current fiscal year.

In addition to meeting with legislative staff, meetings were held with the Governor’s Office and Assembly Minority Leader Brian Kolb.

The meeting at the Governor’s Office included representatives from OPWDD, the Division of the Budget and key staff from the Governor’s Office.  Commissioner Burke and the Governor’s Deputy Secretary for Health, Jim Introne, were among those present.  Administration officials said that they believed that the savings plan developed pursuant to budget language with provider representatives was an effective way to substantially eliminate the impact of the budget cut.  They believed that legislation proposed to fully restore OPWDD funding was unnecessary.  The associations expressed their gratitude for the savings plan and the work by the Executive on it.  However, they noted that there continued to be considerable uncertainty about the impact of the savings plan for the current and future budgets.  The meeting was cordial and productive.

The associations also thanked Minority Leader Kolb for his efforts to bring the issue of full restoration to the Assembly floor.  Largely because of the efforts of the minority conference, the issue became the sole focus of the Assembly’s Aid to Localities budget debate.  The associations noted that attention to the issue is critical to keeping it alive.  The Minority Leader, along with many other members of the Legislature, continues to be extremely interested in the issue of OPWDD budget cuts.

The full restoration bill is in the process of being amended to reflect priorities and concerns of people with developmental disabilities, their families and providers.

Chapters are urged to contact their legislators and ask them to cosponsor the legislation – A6692 by Weisenberg and S4777 by Senator Golden.

The Controversy Cindy began the meeting by noting that CMS recent involvement with New York State was triggered by two factors including the $5000 per day institutional rate controversy and “quality issues” – presumably those that appeared in the New York Times series on abuse. She said funding critical to the federal government, New York State and providers was mishandled doing a disservice to all interested parties.

Responding to a question about OPWDD budget cuts resulting from resolution of the rate controversy, Cindy said that such action is appropriately a state matter.

Managed Care NYSARC explained that managed care poses an enormous challenge to the entire organization requiring nothing less the conversion of a traditional nonprofit into an insurance company.  Further, NYSARC expressed its determination to move toward the person centered transformational priorities shared by New York State and CMS.  However, NYSARC also indicated that further impacts from federal reductions, specifically from retroactive paybacks, could make attainment of these goals extremely difficult and create significant risk to the tens of thousands of vulnerable persons served.  While she made no commitments on future funding actions, Cindy made it clear that moving forward to provide the best care possible was now the top priority.  The overriding goal is to move past these issues and create a system that is person centered, integrated, cost effective and sustainable.  Cindy also indicated that while CMS strongly embraces those goals, the State has wide latitude as to how to achieve them and has chosen to do it through managed care.

In regard to managed care, CMS indicated that some New York providers are concerned that they could cease operations, jeopardizing continuity of care.  While she was concerned with the implications and how best to deal with them, Cindy said that “we can’t avoid change in the name of continuity.”

Article 7 language NYSARC also reviewed Article 7 language negotiated with the Governor’s Office to ensure that the statutory foundation for managed care for people with developmental disabilities is based on habilitation, not a medical model.   The language was initiated by NYSARC and greeted very positively by the Governor’s Office.  Contributing to the effort was a coalition of agencies including CP of NYS, ALIA, IAC and DDAWNY.  Cindy was extremely positive about the language and the joint action by the State and providers to embrace habilitation.  Her staff indicated that concern about a medical model in the context of managed care is an issue of national significance.

National significance, future contacts We also briefed Cindy and her staff on NYSARC’s plans for managed care, including regional MSOs.  She appeared to clearly recognize the importance of developments in New York State, their national implications and NYSARC’s critical role in those developments.  Cindy strongly encouraged Jack and Marc to have NYSARC to stay in touch with her and her staff and share our experience and concerns in the future.   In particular, she wanted us to help CMS “think through …… what works” as we go forward with managed care and “transformational” objectives.

Throughout the meeting Cindy was very frank, sensitive to our concerns and expressed her appreciation to us for traveling to Washington to meet with her.  She is very knowledgeable about the needs of people with developmental disabilities.

This is NYSARC’s latest meeting with Cindy.  She has presented to our organization on a number of occasions in the past.  At the White House and Arc Governmental Affairs seminars we have had the opportunity to briefly share thoughts about important issues.  At the opening of Tuesday’s meeting Cindy and Marc reminisced about a conversation they had a number of years ago concerning future trends in the field.

Our thanks to The Arc  NYSARC expresses our deepest appreciation and thanks to The Arc, including Peter Berns and Marty Ford, for their work to facilitate this meeting.  Their efforts are invaluable to all of the families and individuals that NYSARC serves and represents. We also want to thank Julie Ward and Maureen Fitzgerald of The Arc for their thoughtful input.

The bill (S.2534 by Hannon/A.857 by Weinstein) has not yet been delivered to the Governor’s desk.

The Uniform Guardianship Act would prevent or minimize multi-state jurisdictional problems by establishing certain procedures to, when necessary, transfer a guardianship case to another state; enable a guardian to act in another state; and resolve jurisdictional issues concerning guardianship when more than one state is involved.  However, as a practical matter the Act will not have any effect unless the states in question have enacted it.   The Act does not change substantive guardianship law.

The Uniform Guardianship Act has been adopted by the District of Columbia and 30 states.

Click here to read the official legislative bill memo

The legislation (A6692 by Weisenberg/S4777 by Golden) calls for an evaluation of the impact of the savings plan developed pursuant to budget language contained in the final FY 13-14 budget.  The extent to which the savings plan reduces the budget’s $90 million cut would be evaluated by the workgroup that developed it.  Based on the workgroup’s recommendation, the Director of the Budget would be required to provide sufficient additional funding to OPWDD voluntary programs to make up for any shortfall remaining after taking into account the impact of the savings plan.

This would fully restore funding to levels existing prior to the enactment of the cut thus achieving the objective sought by people with developmental disabilities, advocates, providers and families during the campaign against the cut which occurred over the course of the budget session.

A copy of the bill memo for the Assembly is below.  The memo is the same for the Senate bill.

………………………………………………………………..

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)

BILL NUMBER: A6692A

SPONSOR: Weisenberg

TITLE OF BILL:  An act making an appropriation to the office for people with developmental disabilities for the purpose of providing additional services and expenses for community programs for people with developmental disabilities

PURPOSE:

To provide $90 million as the State share of funds to restore a 4.5% cut to not-for-profit service providers enacted by the Legislature in the FY 2013-14 budget.

SUMMARY OF PROVISIONS:

This bill appropriates $90 million or such amount thereof as may be necessary for the purpose of funding OPWDD nonprofit services. The amount of the appropriation shall be based on a recommendation developed by the workgroup appointed pursuant to chapter 53 of the laws of 2013. The workgroup shall develop its recommendation after evaluating the extent to which the savings plan it developed pursuant to budget language restores the $90 million reduction enacted in the final budget. To the extent that funding falls short of fully restoring the $90 million reduction the director of the budget shall deposit sufficient funds to make up for such shortfall to the credit of the general fund for the purpose of funding services through OPWDD.

JUSTIFICATION:

The final FY 13-14 budget for not-for-profit services to the Office of People with Developmental Disabilities was cut by a state share amount of $90 million or 4.5%. With added federal funds this will amount to a $180 million reduction.

Advocates, people with developmental disabilities and their families believe that given the years of consecutive cuts to the developmental disabilities system, it is essential to eliminate the entire $90 million cut. This is especially true because of the enormous demands on the system of developmental disabilities services from waves of new regulations, the transition to managed care and a “transformational” agenda aimed at moving people to least restrictive environments.

To begin the process of minimizing the $90 million cut, language in the final budget directed a workgroup to develop a savings plan. The savings plan was finalized by the workgroup at the end of March.  While initial assessments of the savings plan are positive, it is unclear exactly to what extent it reduces the 4.5% cut.

This bill requires that the impact of the savings plan be reevaluated at future date by the workgroup so that an accurate assessment of the savings plan’s impact will be possible. To the extent that the savings plan does not provide sufficient savings to eliminate the impact of the $90 million cut, this bill would appropriate the shortfall to OPWDD and make good on the Legislature’s promise for full restoration but only after every effort was made to achieve full restoration without resorting to new appropriations. While savings plan reductions such as supplemental room and board costs and certain administrative costs are consistent with the most efficient use of funds, associated funding must remain to support system transition and unmet needs.

This approach to full restoration is responsible, cost effective and fair to the State, people with developmental disabilities and their families and providers.

PRIOR HISTORY:

New Bill

FISCAL IMPLICATIONS:

Undetermined at this time.

EFFECTIVE DATE:

This act shall take effect immediately.

“Obviously, the last thing we want to do is disrupt services to this population, which is one of the neediest populations — one of the groups with no means to provide for themselves,” said Megna, speaking at a forum on the budget at Crandall Public Library on Thursday.

http://poststar.com/news/local/state-budget-director-cuts-to-disabled-programs-will-not-affect/article_58e69a5a-9d77-11e2-83f8-0019bb2963f4.html

http://blog.timesunion.com/capitol/archives/183771/house-oversight-committee-tabulates-lower-medicaid-reimbursement-funds-for-ny/

* Delaying a decision on whether to green-light the controversial, natural-gas drilling technique known as fracking, which has divided the state.

* Obtaining luxury seats for himself and top aides at the Buffalo Bills’ stadium in a deal to keep the state’s only NFL team from leaving.

* Cutting aid for the developmentally disabled and planning an election-year tax rebate for families while other taxes and fees increase.

http://www.nypost.com/p/news/local/gop_licking_chops_at_gov_poll_slide_r2AdBtL8juOwv5x2LzqWkO

A “hostile amendment” was put forward by Queens Democratic Senator Tony Avella to fully restore the cut. That amendment was one of two hostile amendments advanced during the Aid to Localities debate.  Both were ruled out of order by Republican Senator Joe Griffo, acting as the Chair on behalf of Majority Leader Dean Skelos.  That ruling can be overruled by a majority vote of Senators present.  Twenty six members, all from the Minority, voted to overrule but fell short of the 30 votes required.

Nonetheless, there was ample opportunity to for Senators to speak to the issue which was clearly a dominant, if not the dominant theme during the floor debate.  Among many Senators from both parties speaking against the cut were Senators Avella, Tkaczyk, Carlucci, Krueger, Kennedy, Sanders, Gipson, Rivera, Dilan, Maziarz, Golden, Peralta, Parker and others.  Senators spoke about people with developmental disabilities; families of people with developmental disabilities in their districts; the lessons of Willowbrook; group homes; the impact of cuts on direct care staffing; and, the controversial funding methodology which had been the subject of news reports from almost two years and is the basis for the cut.  Also discussed was budget language included to deal with the cut over the next few months.  Some Senators called on the Governor to add additional funding prior to the close of the legislative session.

The primary aim of the effort to enact a budget amendment was to make certain that the issue of the enormous funding reduction to OPWDD maintains an absolutely essential high profile.  In the Senate, that goal appears to have been accomplished for now.

To see a video of this session go to: http://www.nysenate.gov/sessions/2013  Click the session for March 27^th.

The Assembly will consider the Aid to Localities budget when it reconvenes tomorrow at 10:30 am.  Like the Senate, it is expected that a hostile amendment will be introduced by the Minority Party to fully restore the cut.   In the Assembly, the Minority is comprised by Republicans.

You can watch the Assembly proceedings at http://assembly.state.ny.us/av/

Paul Marchand, NYSARC Consultant on Governmental Affairs

The failure of the Obama Administration and the U.S. Congress in 2011 to reach a deal on federal spending resulted in the enactment of an unusual strategy to keep the federal government operating.  Using an obscure budget tactic called “sequester”, the White House and the Congress decided to play a game of fiscal policy chicken.  Should they not reach a budget deal by March 1, 2103 (almost a year and a half after the sequester threat was concocted), $85 billion in federal funding would be subject to mandatory automatic across the board cuts to defense and domestic “discretionary programs”.  March 1 came and went and the chicken won and the citizens will lost when the White House and the Congress again failed to make a deal, thus triggering the sequester.  The sequestration was officially set in motion on March 1.  This represents 2.4 percent of the federal budget.  The cuts would be implemented roughly 50/50 among defense and non-defense programs.  Discretionary programs are those that are subject to annual appropriations decisions.  Most entitlement programs, such as Medicaid, Social Security and Supplemental Security Income (SSI) are exempt from sequestration.

The White House Office of Management and Budget (OMB) released an order on March 1 that spells out the implications of sequestration on the discretionary programs.  Non-exempt defense programs will absorb 7.8 percent cuts while non-defense programs will be cut by 5.3 percent.  The cuts will actually affect programs to a greater degree since there are only six months remaining in the fiscal year that ends on September 30, 2013, thus cramming the cuts into a short period of time.

Critics of sequestration rail that all discretionary programs will be affected equally even though some federal programs are much more critical than others.  To many, sequestration is a blunt and indiscriminate instrument that will significantly harm people who rely on vital human services programs.  Key programs such as unemployment insurance, border crossing protection, the F.B.I., the TSA and many airport tower personnel will be cut, staff furloughed or eliminated.  Less critical programs such as White House tours are already stopped.  This will also be true of discretionary disability programs.  For example, vital programs within the Individuals with Disabilities Education Act (IDEA) will be reduced at the same levels as the National Council on Disability and the Recreation program within the Rehabilitation Act.  Disability provider agencies, families and people with intellectual and developmental disabilities who rely on discretionary programs will likely be negatively impacted soon.

Actual time lines for full sequestration implementation are still not fully known.  Sequestration will also create a domino effect, starting with the federal bureaucracy, followed by state operations, localities, service providers and ultimately to program consumers.  As sequestration is implemented over the next few weeks and months, there will be some short term and long term impacts.  For example, it is likely that the reduced sequestration amounts will be used as a baseline for determining federal appropriations in future years.  Such action would multiply the impact of the new cuts.

The OMB order lists the following cuts for certain programs that serve many children and adults with disabilities:

• IDEA – $633 million
• Vocational Rehabilitation – $184 million
• Title XX Social Services – $117 million
• Maternal and Child Health – $20 million
• Aging and Disability – $75 million
• Rental Assistance – $938 million
• Disability Housing – $8 million

Clearly NYSARC operations will be affected by the sequestration.  Much worse are the looming state cuts to NY Medicaid reimbursement rates.  The combination of the Medicaid and sequestration cuts will render NY”s disability safety net in tatters.

Given the real damage that is likely from sequestration, Capitol Hill and the White House are discussing potential scenarios to limit that damage.  For example the House of Representatives passed a bill on March 7 to give the defense Department more latitude to shift some cuts to prevent the most critical defense programs from all or some of the cuts.  Some of the sequestration fixes could come piecemeal while there is a possibility that much of the negative consequences could be totally avoided.

While the federal government, states, localities and provider agencies continue to implement the sequestration cuts, the U.S. Congress recently passed two other significant federal budget related legislation.  Both Houses of Congress passed their respective Fiscal Year 2014 Budget Resolutions (BR).  A BR is a non-binding blueprint which the Congress utilizes to craft revenue and spending decisions for the next fiscal year.  The President takes no action on BRs.  Action in the Senate, by a one vote margin, marks the first time in four years that that body has adopted a BR.  The FY 2014 BRs are drastically different.  Most budget experts, with whom I agree, envision no chance that the two versions can be reconciled.

The House BR calls for no tax increases and huge reductions in federal spending, including Medicaid and Medicare. The Senate BR would require $1 trillion in increased tax revenues over the next ten years while making modest reductions to human services programs.  If the BRs are not reconciled, each legislative body can utilize its own BR as a blueprint for charting their respective Fiscal Year 2014 appropriations bills. The huge differences between the resolutions point to another major budget impasse when Fiscal Year 2014 starts on October 1.

The most critical legislation recently enacted extends the Fiscal Year 2013 Continuing Resolution (CR) through the remainder of the fiscal year which ends on September 30.  A CR keeps the federal government operating when regular annual appropriations bills are not passed prior to the start of the new fiscal year.  President Obama is expected to sign the measure into law before the current CR expires on March 27.  The CR basically keeps federal programs operating at the levels set by the sequestration.  A few programs, most notably defense and national security, are provided some flexibility from sequester cuts.  Enactment of this measure prevents any threat of a federal government shut down, until at least late May when the next fiscal crisis looms, when the debt ceiling is set to be reached.

The most controversial (if that is possible) budget dilemma will resurface in May when the U.S. again will reach the limit of the current debt ceiling legislation.  Without increasing the debt limit, the U.S. again would be faced with reneging on its debt, again sparking the ideological debate on the role of the federal government and the ability of our nation to meet its debt obligations.

The entire NY disability community now faces very difficult decisions in dealing with the Medicaid and sequestration reductions.  The potential for provider staff furloughs and reductions as well as service cutbacks and program terminations is real.  I know NYSARC is doing its utmost to limit or avoid the damage.  Everyone who is involved in NYSARC should do their utmost to support NYSARC’s efforts to affect positive, not negative, changes to the DD service system.