Executive Office of Health and Human Services s17

July 27, 2017

Dr. Monica Bharel, Commissioner Department of Public Health Executive Office of Health and Human Services 250 Washington Street Boston, MA 02108-4619

Re.: 105 CMR 158.000 - Licensure of Adult Day Health Programs

Dear Commissioner Bharel,

I am writing as the owner of Accord Healthcare Management Inc., and our Adult Day Health Programs - Accord Adult Day Center in Webster and Gateway Adult Center in Wareham - regarding 105 CMR 158.000 Licensure of Adult Day Health Programs. My programs serve 130 elders and adults with disabilities each year. We have been operating since 1985.

I support the detailed comments submitted by the MA Adult Day Services Association, (MADSA), attached below. Thank you to Secretary Sudders, Commissioner Bharel, Assistant Commissioner Tucker and to all staff members at the Department of Public Health. You have proposed several positive changes to the regulation and I sincerely appreciate that.

However, I still have significant concerns about some of the remaining provisions and am seeking further relief from some of the burdensome, unnecessary and costly requirements, which are making it much more difficult for small businesses and nonprofit organizations to operate. Additionally, we have been seeking fair compensation that covers the actual cost of providing the services, in 2017, under the new regulatory scheme.

We request that you make all of the changes MADSA requested below, including:

 Eliminate the requirement for several new Consultants. New Social Work, Occupational Therapy, Dietary, Physician and Pharmacist Consultants are now required for all ADH programs. The approximate cost is at LEAST $7,200 per year per program. All of the new consultant requirements should be eliminated, as the state has not funded them and they unnecessarily burden nonprofit organizations and small businesses. ADH programs operated successfully and efficiently for 40 years under the supervision and oversight of Program Directors, Licensed Registered Nurses and required dietary consultation under USDA Food Program requirements. SW, Dietary and OT consultants are unnecessary costs.

 Revise Damaging Changes to the ADH Licensed Capacity Requirements, as outlined in MADSA’s testimony.

 Reduce paperwork requirements as outlined in MADSA’s comments.

 Provide relief to programs regarding Physical Plant Requirements as noted by MADSA.

Adult Day Health (ADH) Programs provide critical health care services to frail elders and adults with disabilities, including daily registered nursing care, chronic disease management, ongoing medical and preventative health care, family support, a six to eight hour-day and two meals, all for $58.83 per day! Our programs are gatekeepers to more expensive health care services, such as emergency room care, and are extremely cost-effective, helping individuals avoiding expensive premature institutional care.

MADSA and its members have long supported ADH Licensure and the establishment of new suitability standards, licensee responsibilities, and regular program oversight. However, we have also repeatedly stated that the new regulations, aimed at protecting participant and program integrity, must be carefully calibrated to ensure that the focus of ADH remains on the provision of excellent, participant-centered, flexible and efficient community-based services. This is what has made ADH the cost-effective and successful service that it is.

From the beginning of this new regulatory process, we also warned about the risks of moving ADH toward Nursing Facility-type requirements that over-emphasize paperwork and other unnecessary requirements - - over direct patient care. We stated that we believed this shift reduced quality of care in some Nursing Facilities and that we did not want to see that happen to Adult Day Health programs. Further, we stated that new costly requirements must be minimized to ensure the continued cost efficiency of ADH programs, and that ALL new mandates must be fully funded to ensure the continued viability of these vital community based-programs. Sadly, despite numerous public assurances from former MassHealth staff and the fact that new wide-ranging, costly requirements and unfunded mandates went into effect in January 2015 (now over two and a half years ago), to date, MassHealth (MH) and other state payors have not provided any funding for these new requirements, nor has MH provided ADH programs even a regular cost of living adjustment since 2012.

Meanwhile, my program’s costs have continued to escalate due to the Licensure Regulation costs. The Department of Public Health’s own Filing/Fiscal Effect statement for the new ADH licensure regulation cites additional provider costs of $40 Million, from 2015-2020. (Or increased cost of $164,000 per program, or about $5.54 per client/day). Additionally, my program’s costs have increased due to other factors, including the Minimum Wage increase, increased staffing requirements, increased health insurance costs, regular staff COLAs, the new earned sick time law, etc. This situation cannot be sustained!

While we are aware that DPH does not set reimbursement rates, I must stress that ADH regulations and rates are inextricably linked to the viability of my program. Therefore, I hope that the Department will seriously consider providing additional relief to ADH programs and make further amendments to the regulation, as outlined in MADSA’s testimony attached below.

Per DPH Word document submission requirement, this letter does not contain an original signature.

Sincerely,

Joseph Rizzo President/Owner Accord Healthcare Management, Inc. 10 Cudworth Road Webster, MA 01570 [email protected]

Statement of

Michele Keefe

Executive Director

Massachusetts Adult Day Services Association

One Florence Street, Boston, MA 02131

Prepared for Presentation to the

Department of Public Health

Proposed Amendments to Regulation 105 CMR 158.000

Licensure of Adult Day Health Programs

July 26, 2017

Dr. Monica Bharel, Commissioner Department of Public Health Executive Office of Health and Human Services 250 Washington Street Boston, MA 02108-4619

Re.: 105 CMR 158.000 Licensure of Adult Day Health Programs

Good Afternoon,

My name is Michele Keefe and I am the Executive Director of the Massachusetts Adult Day Services Association (MADSA). I hold a master’s degree in public policy from Tufts University and have worked in management and policy roles in the field of long term services and supports in a number of settings, including nursing facilities, rest homes, assisted living, and Adult Day Health (ADH) for 25 years. My experience in all of these settings has shown me that Adult Day Health is, by far, the most cost-effective and desirable setting for those in need of ongoing medical and preventative health care and chronic disease management.

Thank you for the opportunity to testify today on behalf of MADSA, our 120 member-programs and most importantly on behalf of the 16,000 elders, adults with disabilities, and their family members, who are served by Adult Day Health (ADH) programs all across the Commonwealth.

Because I am testifying on behalf of many MADSA member organizations and providers, my written statement, which I will submit for the record, is quite lengthy. I will do my best to summarize the key points for you, rather than reading it in its entirety. Our comments are based on an in-depth analysis of the regulations, which was undertaken by MADSA in 2013 and updated after implementation in 2015. We held eight regional meetings across the state for ADH provider-members and two full state-wide meetings for all of our members to review the regulation and provide input and recommendations. We had significant participation at each meeting. In the interest of time, I am presenting consensus testimony based on the input of our member programs. Individual programs will be submitting written testimony regarding concerns specific to their programs.

I would like to start by expressing our thanks to Secretary Sudders, Commissioner Bharel, Assistant Commissioner Lindsey Tucker, Torey McNamara, Lauren Nelson, and to all staff members at the Department of Public Health. We are grateful for all the time and energy your departments have devoted to Adult Day Health services and for your respectful approach to this process, led by Secretary Sudders and Asst. Commissioner Tucker. It is clear you gave serious consideration to stakeholder input. We recognize that the Department has worked diligently to develop high quality ADH licensure standards and MADSA’s requests for changes were relatively few, considering the breadth of this brand-new regulation. MADSA and our members believe you have proposed several positive changes, under consideration today, and your thoughtful and collaborative approach to this effort is sincerely appreciated.

However, ADH providers still have significant concerns about some of the remaining provisions and are seeking further relief from some of these burdensome, unnecessary and costly requirements, which are making it much more difficult for small businesses and nonprofit organizations to operate. Additionally, we have been seeking fair compensation that covers the actual cost of providing the services, in 2017, under the new regulatory scheme.

While we are aware that DPH does not set reimbursement rates, we must take this opportunity to again publicly stress that ADH regulations and rates are inextricably linked. Adult Day Health programs all across the state are in financial distress due in part to the increased costs of licensure, coupled with stagnant rates. These are excellent, well-run, longstanding programs, operated by some of the most highly respected providers we have. They are quality programs that participants, families, payors like ASAPs/SCOs and others truly value and depend on - - Programs that families and the state CANNOT afford to lose, from Boston, to Tewksbury to Western Mass, to Fall River and beyond.

We hope that the Department will seriously consider providing additional relief to these programs and make further amendments to the regulation, as I will outline later in my testimony.

But first, for those in the Administration and at DPH who were not here during the development of the ADH Licensure regulation and hearing process, which started in 2012, I would like to pause to provide a little history and context.

Adult Day Health (ADH) programs have been operating in the state of Massachusetts for over 40 years. They provide critical health care services to frail elders and adults with disabilities including daily registered nursing care, chronic disease management, ongoing medical and preventative health care, family support, a six to eight hour-day and two meals, all for $58.83 per day! These programs are gatekeepers to more expensive health care services, such as emergency room care, and are extremely cost-effective, helping individuals avoid expensive premature institutional care. MADSA and our members have long supported ADH Licensure and we requested the establishment of new suitability standards, licensee responsibilities, and regular program oversight, over eight years ago. However, we have also repeatedly stated that the new regulations, aimed at protecting participant and program integrity, must be carefully calibrated to ensure that the focus of ADH remains on the provision of excellent, participant-centered, flexible and efficient community-based services. This is what has made ADH the cost-effective and successful service that it is.

From the beginning of this new regulatory process, we also warned about the risks of moving ADH toward Nursing Facility-type requirements, that over-emphasize paperwork and other unnecessary requirements - - over direct patient care. We stated that we believed this shift reduced quality of care in some Nursing Facilities and that we did not want to see that happen to Adult Day Health programs. Further, we stated that new costly requirements must be minimized to ensure the continued cost efficiency of ADH programs, and that all new mandates must be fully funded to ensure the continued viability of these vital community based-programs.

Sadly, despite numerous public assurances by former MassHealth staff and the fact that new wide-ranging, costly requirements and unfunded mandates went into effect in January 2015, now over two and a half years ago, to date, MassHealth (MH) and other state payors have not provided any funding for these new requirements, nor has MH provided ADH programs even a regular cost of living adjustment since 2012. In fact, MH has frozen ADH funding for two rate cycles, (October 2014, October 2016) and is now proposing to continue this freeze through a third cycle, presumably through FY19, or for seven years. The current rates are based on costs from 2009-- costs that will be ten years old in 2019!

Meanwhile, ADH providers’ costs have continued to escalate due to the Licensure Regulation costs. The Department of Public Health’s own Filing/Fiscal Effect statement for the new ADH licensure regulation cites additional provider costs = $40M, from 2015-2020. (Or increased cost of $164,000 per program, or about $5.54 per client/day). ADH providers’ cost data has borne this out. Additionally, programs’ costs have increased due to other factors, including the Minimum Wage increase, increased staffing requirements, increased health insurance costs, regular staff COLAs, the new earned sick time law, etc. This situation cannot be sustained!

Again, we are well aware that the Department of Public Health does not determine reimbursement rates, but no regulation can be considered in a vacuum. Governor Baker endorsed this concept by implementing a comprehensive regulatory review process in 2015. In his Executive Order, he stated in part the following:  “…State agencies and offices across the Commonwealth must coordinate and collaborate with one another to ensure that the government speaks in one voice, creating an efficient, coherent and consistent regulatory framework.

 “In conducting such review, which shall be coordinated across all Agencies and participating governmental bodies, only those regulations which are mandated by law or essential to the health, safety, environment or welfare of the Commonwealth’s residents shall be retained or modified. In order to find that regulation meets this standard, the Agency must demonstrate, in its review, that (b) the costs of the regulation do not exceed the benefits that would result from the regulation.”

While the Department has attempted to provide relief on some of the costly items with the proposed amendments, we believe certain items remaining in the ADH Licensure regulation do not meet the Governor’s standards. Several ADH programs, many of which have been successfully operating for 25-40 years, have closed or are making plans to close this year. The unfunded mandates have created an urgent situation for ALL ADH providers and many are in financial distress. The costs of the regulation clearly do not exceed the benefits, if it leads to program closures, which in turn increases state costs as a result of additional nursing home care, increased use of Emergency Rooms and hospital stays for elders who lose ADH services. This has been borne out by tracking the outcomes of participants whose ADH programs have closed.

Therefore, we ask that you please reconsider amending these provisions as outlined below. While any additional regulatory relief the Department can provide will be welcomed, it is again important to note that this will not solve the most pressing problem – inadequate reimbursement rates that do not cover the cost of providing the service.

The following are MADSA’s specific comments, concerns and/or recommendations regarding the proposed ADH regulation and amendments.

CMR 158.000 Licensure of Adult Day Health Programs

105 CMR 158.004 – Definitions - Program Capacity

DPH’s new definition and requirements related to Program Capacity are arbitrary and unnecessary. ADH Programs must currently maintain occupancy numbers at or under allowable limits of their Certificate of Occupancy, which is deemed safe by local fire and other city/town officials. I cannot stress enough how crucial it is that this provision be amended. ADH programs do their very best to predict attendance, but it fluctuates dramatically due to the frail health of participants. Requiring that programs never exceed their licensed capacity forces them to “under-book,” which results in reducing services to participants who need them, and in an extreme reduction in program revenue. At least one long-standing excellent program has already closed as a direct result of this item and there are dozens of other programs across the state also at risk due to this issue.

Recommendation: Revise the damaging changes in ADH Licensed Capacity Requirements. Use the previous MH regulatory requirement/definitions, below, which had been working well for 40 years:

Masshealth ADH Program Regulations 130 CMR 404.412. Definitions: “Certified Capacity - a capacity approved by the MassHealth agency as outlined in 130 CMR 404.412(H). Once a provider is approved, the average daily census at the provider site must not exceed the certified capacity.” (Based on Monthly average)

Alternate Recommendation: If the Department is still unwilling to revise the definition of Capacity, we request that provision be amended, as follows, and that programs then be allowed to request an increase in their licensed capacity, as appropriate.

158.045: Physical Plant Requirements (B) Participant Area (1) The Participant Area shall contain at least 50 35 square feet per participant.

We have been told by an Engineering/Code Consulting firm that 50 square feet per person of “net program space” (which excludes much of a program’s actual usable spaces where ADH participants often congregate, such as offices, meeting rooms and reception areas) is somewhat higher than other similar facilities. The requirement for other community-based, day time facilities with similar space and time usage patterns, such as Child Day Care facilities, is 35 sq. ft. per person. Apparently, 50 square feet (net) is required, for example, in vocational schools’ shops due to the need for a wide berth around saws, electrical and other heavy equipment. This amount of “net program space” and berth is not required in day time ADH facilities. If the Department refuses to make this amendment to the regulation, we ask that you would accept and consider Waiver Requests seeking a waiver and/or reduction of the 50 sq. ft. requirement for those programs where this item is an “undue burden.”

105 CMR 158.032 (B) Licensed Nursing Staff

MADSA and our members greatly appreciate that the Department accepted our recommendations to: (1) Amend the regulation to reflect the previous requirements for nursing staffing levels, which worked well for 35 years (per MH regs.) and (2) to allow LPN coverage of RN absences on a temporary basis.

We thank you and support the proposed amendment, as outlined. This change will greatly benefit programs and participants as ADH LPN employees know the participants and are much more able to provide quality and consistent care than expensive temporary agency RNs. ADH admissions and other documentation requirements necessitate RN involvement, so there is an inherent safeguard to ensure programs will not go too long without an RN onsite.

105 CMR 158.032 (G) Direct Care Staff (1) A Program shall provide at least one direct care staff person per six participants attending the Program.

Recommendation: Implementation/enforcement should allow ADH programs to bring in the additional staff person, as necessary within the 1 to 6 interval, as the previous MH regs. allowed. Programs report that DPH staff/surveyors have said that programs must bring in the additional staff person “for each additional 1 to… participants.” However, we do not agree and further do not see this stated in the regulations.

Net effect: Significant additional staff hours/costs each day without additional revenue to offset it. Estimated Cost - $16,900-$33,800/year per program. Unnecessarily stresses nonprofits and small businesses and would force programs to delay admissions until six participants are admitted at one time.

105 CMR 158.032, 158.033: Consultants

General Recommendation: All of the new consultant requirements should be eliminated. While some may see these positions as worthwhile, the state apparently does not, since it has chosen not to provide any reimbursement to support them. Therefore, they are unfunded mandates that unnecessarily burden nonprofit organizations and small businesses, driving up costs and in some cases they do not add value to the service.

As we have always done in the past, if ADH participants require clinical services, such as counseling/therapy, ADH programs can refer them for this service through outside contractors, just as we do for Physical or Speech Therapy, for example. ADH programs operated successfully and efficiently for 40 years under the supervision and oversight of Program Directors, Licensed Registered Nurses and required dietary consultation under USDA Food Program requirements. SW, Dietary and OT consultants are not necessary costs. Specific Recommendations: 158.032, 158.033

158.032 Staff Requirements (D) Service Coordination Staff A Program with a licensed program capacity of 24 or more participants shall provide a social worker or other staff person who is appropriately licensed or supervised pursuant to 258 CMR 12.00: Scope of Practice for at least 20 hours per week.

Recommendation: Eliminate the requirement, as follows, for a Licensed Social Worker or Licensed Supervisor. ADH Social Service Coordinators act much like case managers and other community service providers. When clinical services, such as individual or family counseling are necessary, ADH programs have long referred participants to qualified clinicians.

158.032 Staff Requirements (F) Dietary Staff. (1) Registered Dietician A Program shall provide a registered dietician to monitor dietary services. A registered dietician shall be on-site for a minimum of four hours every six months. Recommendation: The proposed amendment, reducing the requirement for on-site RD visits, is an improvement. But, we are requesting that the Department eliminate the requirement altogether as many programs must comply with federal USDA guidelines. Many ADH programs also purchase meals from ASAPs or other vendors who already have dieticians planning and overseeing their menus.

158.033 Staff Qualifications (H) Therapeutic Activity Director

The requirement for a certified Recreational Therapist, Occupational Therapist or an OT consultant to is unnecessary and costly. Given the uniqueness of each program across the state, Adult Day Health Programs have successfully utilized individuals with a range of training and backgrounds as Activities Directors. ADH program directors can ensure quality programming, planning and implementation without the use of consultants.

Recommendation: Eliminate the requirement for an OT Consultant altogether. While the additional item (2)(b) below which the Department is proposing to add is appreciated, we know of no such “model” activities program. (2) If the activity director is not certified as a therapeutic recreation specialist or an activities professional by an accrediting body recognized by the Department, or is not a qualified occupational therapist, the activity director and the Program shall: (a) consult with an occupational therapist in the development of a therapeutic activities program that meets the individual needs of each participant (b) adopt a model therapeutic activities program, provided that the model activities program is developed in consultation with an occupational therapist, and implement such activities program in a manner that meets the individual needs of each participant.

158.037 (A) (3) Assessment and Care Planning

Recommendation: Reduce Unnecessary Paperwork

While we are grateful that the required Nursing and RN FTEs will be amended, it is also very important that nursing documentation requirements be reduced. We recommend that the requirement to complete the comprehensive assessment tool upon admission (i.e. MDS) be eliminated.

The MH Screening Agent will have just performed this tool for their members and this should be shared with the ADH Providers, as we are also health care providers to these patients. In lieu of doing the MDS or a similar doc. for other clients, we propose that Nursing Assessments and Care Plans, which are very comprehensive and are completed for all participants by all ADH programs, be allowed.

If the “MDS” requirement is not eliminated, we request that the requirement to review and revise it (if necessary) every six months be eliminated. Programs are already required to do a new comprehensive assessment every 365 days and upon significant change.

158.039: Medication Management Services

(A) A Program shall:

(1) in consultation with a registered nurse, physician, and pharmacist, develop and implement written policies and procedures governing medications, including the receipt, storage, and administration of all drugs and biologicals; or

(2) adopt model written policies and procedures governing medications, including the receipt, storage, and administration of all drugs and biologicals, provided that such model policies and procedures are developed in consultation with a registered nurse, physician, and pharmacist.

Recommendation: The State chose not to fund this requirement so it should be completely eliminated. Programs’ RNs have been developing and implementing these policies for years. While the proposed amendment allowing Programs to use a model policy developed by an MD and Pharmacist is appreciated, it is unknown whether any would be willing to provide such “templates.” 105 CMR 158.045 Physical Plant Requirements

General Comment: The physical plant requirements specified in the regulations cover a broad range of issues, from relatively minor to major mandates for program sites. For some programs, these new requirements have been extremely expensive and may result in program closure, especially when programs are forced to move to a new location. It is very important to note that the current ADH class rate structure does NOT provide a funding mechanism or reimbursement for capital improvements or physical plant investments made by individual ADH programs. (Unlike the NF rate structure which has an individualized reimbursement component for capital costs.)

We have requested that a funding mechanism for the new ADH physical plant requirements be developed, to no avail. While the physical plant costs vary widely, all programs have encountered significant additional costs.

Recommendation: While many waivers have been granted, we ask that the Department implement a formal grandfathering process for all existing programs operating in facilities that do not meet the new physical plant standards, but do not jeopardize participant care or safety. Alternatively, at a minimum, we request that a clear and detailed appeals process be included in the regulation.

Specific Recommendation: There are a number of Physical Plant facility requirements that should be formally grandfathered, modified or omitted as they or overly specific and costly including:

1. Requirement for minimum classification in Mass State Building Code, Chapter 3 Group I-4. If programs are not provided grandfathering or waivers, this could potentially cost programs from thousands, tens or even hundreds of thousands of dollars.

2. Handrails (Q): Delete this provision. ADH participants live in the community and ADH programs assist them to function independently without the need for handrails. The estimated costs could be $5,000 - $15,000.

3. Dedicated staff toilet (I): May be impossible for programs who lease space or cost prohibitive.

4. Staff break area: May be impossible for programs who lease space or cost prohibitive. 5. Requirement of at least one shower. If not grandfathered or waived, will be extremely expensive and/or impossible for programs to comply.

We thank you again and look forward to working with the Department over the coming years.

Sincerely,

Michele Keefe Executive Director Massachusetts Adult Day Services Association One Florence Street Boston, MA 02131