iBudget: What Happened & Where are We Now? Webinar of The Arc of Florida Nancy E. Wright, Esq.

Overview  iBudget Florida History  Initial iBudget Notices & Moreland  Challenging iB Allocation on Transition  Requesting Additional Services

The Birth of iBudget

iBudget History or What Was the Point?  Problems with Tier System  Problems with budget deficit  Individualized Budgets used in other states  CO, CT, GA, IN, LA, MN, OR, WY

How Individualized Budgets Work in Other States:  STEP 1  Apply a formula/algorithm  Based on screening/assessm ent  Helps to address unequal funding for similar needs  STEP 2  Review of unique needs of client  Formulas not very accurate  Need for large reserve funds  NOT a cost cutter

Florida goes iB  2/2010 APD Report to Legislature  7/2010 iBudget statute effective date  4/2012 Wave 1 implemented  7/2013 Wave 6 implemented  8/2012 iB Rule first proposed  9/2013 iB Rule adopted (but on appeal)  NO iB Handbook proposed as rule YET

iB Statute: § , F.S.  Two Step process :  1. Figure algorithm, using “variables with a statistically valid relationship” to level of need. May include age, living setting, info from assessment.  2. Determine need for funding above algorithm amount : without the increase, the health and safety of the consumer, caregiver or public would be in serious, immediate jeopardy

iBudget Rules Such as they are  65G through 65G  Transition to iB, including Mystery Step  iB allocation  Algorithm  Criteria for additional funds  G.B. v. APD, DOAH Case #  Final Order 9/9/13  On appeal to First DCA

Initial iBudget Notices & Moreland v. Palmer N.D. Fla. 4:12-cv-585

iB Notices of Reduction  About 9,500 clients were notified their cost plans would be reduced  No individualized reasons given  No adopted rules  Not sent to Guardian Advocates  If services continued pending hearing, APD threatened to recover the excess service cost if APD prevailed at hearing

Wave 1 & 2 Notices: 1. Annual iB allocation amount 2. Reduction amount from current cost plan 3. Call your WSC or Area Office if “concerned” Wave 3 – 6 Notices: General statement of process 1. Algorithm determined 2. Extraordinary needs identified based on services received 3. Meeting with WSC to discuss health & safety needs 4. APD determined H&S needs could be met with reduction

What’s the big deal about NOTICE? Judge Walker’s Preliminary Injunction Order: Claimants cannot know whether a challenge to an agency’s action is warranted, much less formulate an effective challenge, if they are not provided with sufficient information to understand the basis for the agency’s action.... It is not enough to have an opportunity to respond, in other words, if one has no idea of the reasons for the adverse decision in the first place.

How was iBudget allocation determined?  1. Algorithm  2. Mystery Step  3. “Health & Safety” Review  NOTE: This step is now termed the “Extraordinary Needs” determination under iBudget Rule

Algorithm EZ iBudget Calculator  Statistical formula presented to Legislature in 2010  Weighted Factors:  Age (over or under 21)  Living setting (family home, supported living, group home, CTEP)  QSI question 18 (transfers), 20 (hygiene), 23 (self-protection  QSI raw scores for Functional & Behavioral

Mystery Step Decision Tree “Extraordinary Needs Worksheet”  List of services APD determined to be “non-negotiable”  Now set out in iB Rule  Does NOT include, e.g., Companion, Transportation, SMHC, Dental  If the total of client’s current “non- negotiable” services are higher than algorithm, this total becomes new iB “target allocation”

Health & Safety Review AIM Form  WSCs got “target allocation” for clients  Required to meet with clients who would have reduction of cost plan  Asked to prepare sample budgets on “AIM Form”  If target allocation won’t meet “health & safety,” WSCs to prepare recommended budget and turn into Area Office  Area review and final determination

Moreland Class Settlement  Finalized November 27, 2013  Relates to NOTICE only, not whether APD’s iBudget decisions were good or bad  Applies to everyone who got an iBudget Notice of Reduction  If no hearing was requested or services cut, reinstatement by January 15  If hearing pending, continued services

Moreland Settlement, cont.  APD will send Amended iB Notices with individualized information for each client, including:  Algorithm amount (EZ iB Calculator)  Services and annualized amounts used for alternative funding amount (Extraordinary Needs Worksheet or Decision Tree)  Specific reasons why a reduction does not implicate extraordinary needs

More Moreland  Amended Notices will go to client in their primary language and  Legal representatives –  Parents of minors  Plenary guardians  Guardian advocates  Durable power of attorney  Health care surrogates

Moreland Finale  Recovery Threat reduced to a whimper  Amended iB Notices clarify that even if APD wins at a hearing, it cannot seek recovery from a client’s family or legal guardian, or take away from a client’s medically necessary services

Challenging iBudget Allocation on Transition

What to do when you get the Amended iB Notice: If no hearing is pending for client, a hearing must be requested within 10 days of receipt of amended notice to preserve reinstated funding If hearing is pending, documentation to show mistake or extraordinary needs may be submitted after receipt of Amended Notice

How can iBudget reductions be challenged?  Was algorithm amount determined correctly?  Were all “non-negotiable services” included and annualized correctly?  Does the client have extraordinary needs?  Have the client’s circumstances changed?  USE Statute and iB Rules

Statutory Criteria for Additional Funding : 1. Without the increase 2. Serious, immediate jeopardy to 3. Health and safety of 4. Client, caregiver or public Extraordinary Needs Funding above algorithm amount Supplemental Funding Funding above cap during service plan year

Examples of what could cause an Extraordinary Need:  History of extreme behaviors  Medical condition requiring a nurse  Chronic “co-morbid” condition (including diagnosed mental health disorder)  Need for total physical assistance  Caregiver condition or circumstances  Loss of services due to transition from Medicaid child services (21), school services (up to 22), or Foster Care  Need “caused by characteristics intrinsic to the client’s diagnosed condition…”

What are Natural Supports?  Now defined in iB Rule to require APD to consider the caregiver’s:  Age  Physical and mental health  Travel and work or school schedule  Responsibility for other dependents  Sleep  Ancillary tasks needed to take care of client

What is a “less costly service”?  By rule, if a client is using a less costly service (e.g. Companion) to meet documented behavioral, medical or functional needs, APD should consider those services in the iB allocation.  Examples:  ADT is an inappropriate choice for the client  Companion is used for care during caregiver’s work hours

What’s up with the QSI?  Impacts the algorithm, so check to make sure relevant parts are correct BUT  May not have any impact on iB target allocation  Provides limited support as to the level of client’s needs  Should request new QSI AND/OR new algorithm determination when condition or circumstances change

Request for Additional Services, i.e., Supplemental Funding

What about the Cost Plan Freeze and Crisis Requests?  CPF implemented March 2011  For increase in CP, client required to meet criteria for “crisis enrollment” priorities, i.e., homeless, serious danger to self or others, or caregiver unable to provide care  Multiple levels of review, repeat request for documentations, no emergency funding  “Crisis Requests” were pending many months, sometimes over a year

Wheaton v. Palmer N.D. FL 4:13-cv-179 Challenge based on APD failure to:  Provide services with “reasonable promptness”  Provide services in sufficient amount, duration and scope  Resolved by Settlement Agreement

Wheaton Settlement APD must comply with iB Rule deadlines for response to any request for an increase  30 days to approve, deny or ask for more information  10 days for response to info request (can ask APD to make decision based on what has already been submitted)  If info requested, APD decision w/in 60 days of submission of request

Wheaton Settlement, cont. Automatic Approval Provision  If 60 day deadline is NOT MET  WSC or client may notify APD in writing of the delay  If still no response in 20 days, request is deemed automatically approved  TIP: There are no pre-conditions to submission of a request. Don’t delay.

More Wheaton Emergency Funding can be approved by Regional Office pending review Tip: If it is an emergency, submit a request even before a request for supplemental funding.

Wheaton Finale Requests for services will be reviewed under iB supplemental funding criteria rather than just the crisis enrollment priorities. Also includes crisis priorities, but criteria is same as “extraordinary needs”: Without increase, serious immediate jeopardy to health and safety of client, caregiver or public

Supplemental Funding Needs Set out in iB Rule Includes one-time, temporary (less than 12 months) and permanent  DME at end of useful life or damaged  Environmental modifications  Services to address loss from change in age  Loss or incapacity of caregiver (temporary or permanent)  Acute serious dental need  Other significant change in condition

Documentation  Steps taken to reduce other services  Why client, caregiver or public’s health and safety are in jeopardy  May need face-to-face review  Behavioral reports (if appropriate)  Availability of “natural supports”  Work or school schedules  Caregiver limitations

Final Slide  Look at Amended iB Notice carefully and check for errors on algorithm factors, non- negotiable services, annualization of amounts  Is the justification for lack of extraordinary needs correct?  Document the need for more funding  Don’t delay asking for needed services  Ask for new algorithm determination if there is a change in living setting or other significant change in condition