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8/14/2019 Colorado Power Point on Identifying and Addressing a Conflict of Interest
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When a Case Manager Wears More Than One Hat
Practical Tools for Identifying and Addressing a Conflict of Interest
Matthew Solano
Shari RepinskiDivision of Developmental Disabilities
Colorado Department of Human Services
Maureen Booth
Eileen GriffinMuskie School of Public Service
University of Southern Maine
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OverviewWhy addressing a Conflict of Interest is
an Important Quality Issue
Colorados Experience Background & Context
Tools for Identifying & Analyzing a Conflict ofInterest
Reviewing Safeguards & Discovery Methods forMitigating a Conflict of Interest
Identifying System Improvements for AddressingProblems
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Background & Context
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HCBS WaiversComprehensive Service Waivers (HCB-
DD)
Supported Living Services (SLS)
Childrens Extensive Services (CES)
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Colorados Delivery SystemDivision of Developmental Services
(DDD)
Health Care Policy and Finance (HCPF)
Community Centered Boards (CCBs)
Service Agencies
Regional Centers (RCs)
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Division of Developmental Services Serves approximately 12,400 adults &
children with DD through Medicaid and state-
funded programs Serves as the Operating Agency for the three
HCBS 1915 (c) waivers
Promulgates administrative rules
Designates TCM agencies (CCB) andcertifies direct waiver providers
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Health Care Policy and Finance Single State Medicaid Agency
Maintains administrative authority over allMedicaid programs, including the three HCBSwaivers operated by DDD
Provides oversight and direction for the threeHCBS waivers operated by DDD
Maintains final decision making authority overall Medicaid policies, rules, procedures andprocesses
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CCB Roles Information and Referral
Single Point of Entry
Case Management
Service Provider
Organized Health Care Delivery System
(OHCDS)Quality Assurance
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Historical PerspectiveColorados CCB System
Local communities of family members,
advocates and concerned citizens soughtand obtained legislative support for the
service system in the 1970s
Controversies over the dual roles of CCB
(service provider and case managementagency) since the systems inception
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Historical PerspectiveStrong tradition of local control
Local funding for services
Local focus of governance and humanrights monitoring
Recent System Changes
Move from bundled billing/bundled
payment methodology Implementation of Fee For Service
methodology
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Historical PerspectiveConflict of Interest as the focal point
due to multiple roles:
Only CCBs provide Targeted CaseManagement
Most CCBs provide Direct Waiver Services
All CCBs operate an Organized Health
Care Delivery System (OHCDS)
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Historical PerspectiveConflict of interest issues have been
reviewed by:
Special legislative committees The Colorado State Auditor
Local and statewide advocacy systems
DDD
CMS Regional Office Staff
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Meeting CMS RequirementsCMS Stated Concerns
Possible conflicts of interest due to CCBs
providing case management and directservices
CCBs role in ensuring specific qualityassurance and monitoring activities with itsown direct provider agency
CCBs role in ensuring quality assuranceand monitoring activities for agenciesparticipating in its OHCDS
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Meeting CMS RequirementsCMS Stated Concerns (cont.)
Conflicts of interest may hamper uniform
implementation of waiting list procedures CCBs have a disincentive for developingnew, independent service provideragencies in their area
CCB case managers may unduly influenceparticipants choice of a qualified provider
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Meeting CMS RequirementsStatewide Program
Waiver processes and procedures must be
consistent throughout the state and notvary due to local control issues;
Waiver assurances are to be metirrespective of the configuration of a localservice delivery system.
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Meeting CMS RequirementsAdministrative Authority
SMA must provide oversight of
performance of waiver functions SMA must maintain a written agreement
with any operating agency
SMA must specify in writing any function
delegated to a local agency and ensurethose functions meet waiver assurances
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Responding to Stated CMS ConcernsColorados Overall Strategy
Locate an independent, well qualified and
respected vendor to complete a study andmake recommendations
Develop a system of safeguards and
corresponding performance measures to
include in 1915 (c) waiver renewalapplications
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Scope of WorkDDD requested the Muskie School to
complete the following:
Review all pertinent statutes (state andfederal), regulations, policies, contracts
and reports;
Conduct a literature review regarding
safeguards and protections to addresspotential conflicts of interest.
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Scope of Work Review and research the practices of 6-8
states where TCM and waiver services
provided by the same agency are an
allowable/standard arrangement;
Conduct key informant interviews with
Colorado policy makers, providers, advocacy
agencies and others.
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Scope of WorkPrepare a final written report that:
Describes the methodology of the study,
findings and recommendations of thestudy;
Defines conflict of interest;
List appropriate safeguards;
Highlight areas of improvement in
Colorados safeguards and monitoring.
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Methodology & Approach
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Information Gathering Document review
Correspondence with CMS, reports, statutes,regulations, manuals, contracts, survey tools, etc.
Key informant interviews DDD, HCPF, CMS, etc.
Stakeholder input CCBs, advocates, parents, participants, case
managers, etc.
Looking at other states Ohio, South Dakota, Vermont, Wyoming
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Analytical FrameworkConflict of Interest
Public Duty
Private Interest
Identifying opportunities to act on
conflict of interest
Safeguards & discovery methods tomitigate opportunity to act
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Conflict of Interest A real or seeming incompatibility
between ones private interests and
ones public or fiduciary duties. Blacks Law Dictionary, Eight Ed., Thomson West, St. Paul, MN (2004)
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Public Duty Defined in contracts, statutes, regulations.
Our synthesis of the CCBs public duty:
The CCB has a duty to adhere to and promoteColorados programmatic goals for quality
Our synthesis of COs programmaticgoals: Every person meeting the States eligibility criteria
for developmental disability services has equitableaccess to services that meet individual needs andpreferences, are consistent with federal and statelaw, and are within existing resources.
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Private Interests Incentives natural to any business in a
competitive environment
Maximize revenue e.g., by increasing the number of people it
serves or the amount paid for services
Minimize costs e.g., by minimizing scope of services
provided to meet a clients needs Improving its competitive position
e.g., promoting awareness of services
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Conflict of Interest & Quality Distinguishing between a legally prohibited
conflict of interest (narrowly defined) and aconflict of interest having a potentially
negative impact on quality (broadly defined).
Key Question: From a quality standpoint,what are the system incentives and pressures(private interests) that tend toward a
breakdown in quality (public duty)?
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Key Strategy: Break the Problem Down Analyze conflict of interest in the context of
specific dual roles: e.g., provider and case
manager, or provider and single point of entry
Makes it easier to analyze the effectiveness
of safeguards, etc.
Makes it easier to develop a shared
understanding of the potential for problems
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Key Strategy: Analyze System, Not Accusations Not important to know whether any or all
CCBs actually act on a conflict of interest,only whether the conflict of interest and the
opportunity to act on it exists Question becomes: Does the system
adequately protect against acting on a conflictof interest?
The information we gathered flagged areasrequiring examination but was not the basisfor making judgments
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Findings & Analysis
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Applying the FrameworkFor each combination of dual roles:
Identify potential conflict between private
interest and public duty Identify opportunities created by dual role
to act upon conflict of interest
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Applying the Framework
For purposes of this analysis, most
issues connected to CCBs combined
role as a provider and: Single Point of Entry
Case Management
Organized Health Care Delivery System
Quality Assurance
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A CCB OPPORTUNITIES TOCT ON RIVATE NTERESTS AS AIRECTSERVICEPR O V I DER Other CCB Role CCBs Public Duty asAgent of State CCBs Private Interest asP r o v i d e r Opportunities to Act on Private Interests
Single Entry Point!Information &Referral
!Eligibility Determination
!Managing Waiting List
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Safeguards
Safeguard: A policy, procedure or systemthat works to deter a CCB from actingcontrary to the goals of the program.
Evaluating the Adequacy of Safeguard: Does the safeguard adequately address the
potential conflict? Are there barriers to theeffectiveness of the safeguard?
Is there a method to assess the effectiveness ofthe safeguard in eliminating or reducing theconflict (e.g., oversight method)?
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Design Features
Design Features: Roles, responsibilitiesand organizational structures that eitherproduce or eliminate the potential for conflict.
Changes to design features may bewarranted if:
no effective safeguards exist,
substantial barriers to effectiveness ofsafeguards, or
weak or unavailable oversight methods areinadequate to confirm safeguard isworking.
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Provider & Single Entry Point
Single Point of Entry Functions
Information & Referral
Eligibility Determination
Administration of the Waiting List
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Information & Referral
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Eligibility Determination
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Managing a Wait List
POTENTIAL CONFLICT :Maximize revenue by m ov ing people up waiting list to fit with CCBs service openings ?Existing Safeguards Oversight Method
(Italics = proposed)
Barriers to Effectiveness
Persons are selected for
services from the waitinglist acc ording to criteria and
interpretive guidelinesestablished by the
Department.
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Service Provider & Case Manager
Case Management Functions
Service Planning
Provider Selection
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Service Planning POTENTIAL CONFLICT : Incentive to use service planning process to steer participants toward CCB services ?
Existing Safeguards Oversight Method(Italics = proposed)
Barriers to Effectiveness
The Department specifieselements that must be
addressed in the IP and theprocess and timelines for its
completion.
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Provider Selection
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Rate Negotiation POTENTIAL CONFLICT : Negotiate favorable rates for own providers and low rates with competition?
Existing Safeguards Oversight Method(Italics = proposed)
Barriers to Effectiveness
State rules govern purchaseservice rates and allowable
fees for se rvices provided tonetwork providers.
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Service Provider & Quality Assurance
Organized Health Care Delivery System
Functions
Monitoring Services Complaints
Incident Reporting System
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Complaints POTENTIAL CONFLICT : Incentive to suppress complaints against CCB providers ?
Existing Safeguards Oversight Method(Italics = proposed)
Barriers to Effectiveness
Self advocacy or through guardiansor family members
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Incident Reporting POTENTIAL CONFLICT : Incentive to minimize incidents or otherwise limit follow -up investigations ?
Existing Safeguards Oversight Method
(Italics = proposed)
Barriers to Effectiveness
The CCB must establish policiesto ensure prompt notification ofspecific events determined by the
State (e.g., abuse, neglect, death,serious injuries) and othersidentified by the CCB.
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Structural Safeguards
Structural Safeguards Oversight Method
(Italics = proposed)
Barriers to Effectiveness
CCB Governing Boardmembership
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Three Categories of Recommendations
Incremental Strategies
Design Options
Out of Scope but RelatedDeciding How to Proceed is a Balancing
Test:
Implementation of a recommended remedy
should be weigh scope and severity ofproblem against cost and disruption to thesystem.
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Incremental Strategies
Comprehensive Operational Protocols forWaiver Programs
Clarify expectations & minimize CCB
discretion Incorporate safeguard enhancements
Document Oversight Methods & QualityIndicators
Enhance Authority and Visibility of Medicaid &DDD
Move Toward Greater Transparency
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Design Options
Recommended safeguards monitor, but donot prevent acting on a conflict;
Compounded effect of wearing multiplehats confusing to all, including CCB;
CCBs control over so much inhibits theability of the consumer, families andproviders to challenges the CCB, animportant check on the CCBs ability to acton a conflict of interest.
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Option 1: Separate Direct Service
CCB continues other functions but
contracts with providers for direct
service
Costs & Barriers
Potential Benefits
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CCB
Provider
Contracts
CMSPOE
DDD
Referral
Referral
Individual
Providers
Option 1: Separate Direct Service
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Option 2: Contract for OHCDS
DDD enters into contract with one or
more OHCDS. CCB can opt to serve as
OHCDS or as Single Point of Entry and
Case Manager but not both
Costs & Barriers
Potential Benefits
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Option 2: Contract for OHCDS
CCB
SPOE CM
ReferralOHCDS
DDD
Individual
Providers
Referral
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Option 3: Separate All Functions
Put all functions out to bid, no
guaranteed role of CCB
Costs & Barriers
Potential Benefits
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Option 3: Separate All Roles
DDD
CM OHCDS
Individual
Providers
SPOE Referral Referral
Referral
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Out of Scope Issues & Recommendations
Expand consumer choice and control as
quality safeguard
Enhance stakeholder voice in development of
local service options
Review quality of case management
Look at the impact of local funding on
inequity Examine quality of Adult Protective Services
investigations
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Colorados Response
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Colorados Response
Joint review of the final report by SMA(HCPF) and DDD
Public posting of the final report with ajoint response from both StateDepartments
Solicitation and review of stakeholder
and public commentPublic posting of stakeholder and
public comment
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Colorados Response
All except one (re: critical incidentreporting) of the incrementalrecommendations have been acceptedby both State Departments;
Re-design Options will require a multi-year strategy for implementation
Two design options determined to beviable, one option will not beconsidered.
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Colorados Response
Incremental Recommendations
Develop data measures of all existing
safeguards to ensure ongoingmonitoring and review;
Develop joint work plan forimplementation of recommendations
re: proposed enhancements andoversight methods, including datameasures.
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Colorados Response
Incremental Recommendations
Enhancements not requiring new staff
resources to be implemented by7/1/09 via joint work plan
Enhancements requiring new staff
resources will be considered by both
State Departments along with other
budget priorities
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Colorados Response
Implications for waiver renewal applications:
Incorporation into the overarching statewide
Quality Improvement Strategy (QIS) to be
implemented for all HCBS waivers in Colorado Enhancements and monitoring processes likely
will be specific to the three waivers operated by
DDD
Inclusion of several data measures asperformance measures in the 1915 (c) 3.5
application version
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Colorados Response
Options for Redesign
Most controversial
Most time consuming to analyze andto apply the recommended weighing
test identified in the report
Will require legislative action toimplement
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Colorados Response
Options for Redesign
1. Separation of service delivery from all
other roles appears to require the fewest
changes and disruption to the current
system
2. Separation of service delivery and
provider contracts from all other roles
would seem to require more changes
and risk of disruption of services
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Colorados Response
Options for Redesign (cont.)
Separation of all roles would be the mostsignificant change from the current
system and has the greatest risk for
disruption of services
Both Departments have committed to
analyzing and addressing recommendations
re: redesign subsequent to CMS approval of
the three renewal applications in July 2009