August 3rd, 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 CEO of Adult Day Health Program @Manor On The Hill located in Leominster regarding 105 CMR 158.000 Licensure of Adult Day Health Programs. My program serves 150 elders and adults with disabilities each year. We have been operating since year 1999 and serving the community elders for last 17 years.

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 avoid 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.

Sincerely,

Bharti Bhakta

Bharti Bhakta, CEO

Adult Day Health Center @Manor On The Hill

450 North Main Street

Leominstetr, MA

01453


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

On

Proposed Amendments to Regulation 105CMR 158.000

Licensure of Adult Day Health Programs

July 26, 2017

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.