Concerns For HB 2789 (84th Legislature 2015) and the New 90.44 Trauma-Informed Care Training

For those who may not know Texas has modified required training for the ICF/IID program with the new requirement of Trauma-Informed Care Training.  Before everyone starts to cry and moan, it should be noted that this training is currently in an online form for DFPS (http://www.dfps.state.tx.us/training/trauma_informed_care/) It should also be noted that the new bill allows the training to be conducted online.  It's very likely that DADS will offer the training at some regional training sites, but that it will also be offered in an online format considering the content of the bill, now a law.

The law (Link to Final Bill) requires all "new employees to complete the training before working with individuals with intellectual and developmental disabilities."  Because of the requirement that the training be completed before a potential employee works with an individual, it is very likely that DADS will provide the resources online.  Most facilities will simply add this to their new employee orientation and perhaps complain a little about further training requirements without further compensation from the state- that's just the way it is always going to be as it appears now.

DADS has also offered providers the opportunity to give feedback and input on the proposed 90.44 Texas Administrative Code.  I can not stress enough that providers need to take this opportunity to provide feedback.  Information about the feedback and the new 90.44 can be found here on DADS website.  For the sake of review, I have some concerns that I would like everyone to consider.  Below is the full proposed 90.44 from the noted website: 

A license holder must ensure that an employee, contractor, or subcontractor who is hired by the license holder to work at a facility on or after XXX, and whose duties will require the employee, contractor, or subcontractor to work directly with a resident completes trauma-informed care training provided by DADS before the employee, contractor, or subcontractor works with a resident. For purposes of this section, “to work directly with a resident” means to serve on a resident’s interdisciplinary team, or to provide active treatment, health care services, or clinical services to a resident.

DADS has raised some serious questions and concerns with the proposed tag.  Consider the two closely related issues below as your write your concerns and provide your input:

1.  The law calls for "employees who work directly with..." individuals to have the training; however, the DADS rule goes further and requires the following to also have the training:  "Contractor, subcontractor".  Initially, that may not sound too bad, but consider this:  Is your physician going to be willing to take time out of his or her schedule to complete this online training and provide you the certificate?  Physicians are already pressed for time and we all know how hard it is to find Medicaid and Medicare physicians, so once you find them are you willing to risk them leaving your service over training requirements?  This Contractor and Subcontractor will include your physicians, R.N.s, dietitians, dentist and any other person who may work directly with the resident.  Solution: DADS needs to consider keeping this to "Employees Only" as it is written by the law and not read additional information into and put additional hardships on the ICF/IID programs.

2.  The new 90.44 also goes further and clarifies who "to work directly with a resident" means by stating that it is the person who serves "on the resident's interdisciplinary team, or to provide active treatment, health care services, or clinical services to a resident."  Once again this is very strict language written here.  This means that should your regular physician agree and complete the training, you'll be fine in that area, but consider further issues:  What if a specialist is called in to see a resident such as a Neurologist - that person will provide care and input for the IDTeam and by this rule it means that person will also have to take the training.  In addition, this could be stretched to include vocational sites.  Active Treatment is not defined as "formal" or "informal" by this proposed rule. As we all know informal active treatment may occur on a person's outside job site.  The resident goes to work and has a supervisor who will provide training and feedback - that is informal active treatment - so, based on this rule will the supervisor, let's say the grocery store manager, also have to take DADS training and provide a certificate to the facility?  If the supervisor does, how many of your employed people are likely to keep their jobs?  As for those individuals in the school systems, will your district require their special education teachers to take this training?  What about other teachers who may have contact with your resident?  What about teacher aides?  What about substitute teachers the district hires as you may not know when they will call them or who they will be?

The bottom line is that DADS has taken the basic law and for whatever reason expanded it to include everyone who has some influence or input into the resident's life.  On the surface this looks good and I certainly understand and appreciate DADS protective nature toward the residents; however, as it is currently written, it could include even a remote specialist, such as an gastrointestinal specialist, who might be a referral for an individual.  Before that specialist could see the individual and provide any services the facility will have to contact them and require that they take the training and send the certificate to the facility.  There will be some specialist out there who will do it I'm sure, but I'd be willing to wager that there will be a lot more who will thank you for your time and suggest you take the resident to someone else.  The current proposed rule for Trauma-Informed Care Training is a good and needed rule, but it simply needs some modification to ensure that it does not place the resident in jeopardy of not receiving needed services and the facility in jeopardy of non-compliance.  You need to write DADSA through Crystal.Beard@dads.state.tx.us as quickly as possible.  Be direct and point out concerns.  

Social Media Consents in the ICF/IID

from: https://smiaware.com/blog/

Most ICF/IID programs have a huge pile of "Consents" that must be signed each year, and one of those consents usually deals exclusively with newspaper or news postings.  You basically seek consent to allow the individual's picture to appear in the newspaper or on a news show.  This happens when individuals participate in Special Olympics, attend special events in their towns, or perform some sort of community work as a group or as individuals.  Sometimes the individual ends ups in the spotlight because he or she has worked in the community and the news source wants to show how people with disabilities can work.   Whatever the case may be, you likely have a consent that covers basic news coverage, but do you have one that covers the new arena of "Social Media"?

Social Media is a new and rapidly growing area that may or may not replace our newspapers and magazines in the future.  Most people have seen social media, even if they do not recognize it.   Social Media can come in many formats.  It can be movies or clips, articles or webpages, tweets on Twitter, or postings on Facebook.  There are too many outlets for social media to list them all here, but something as simple as your companies webpage could be considered a form of social media.  Below is a list of links for social media that this author has been involved in during the past year:

Twitter: https://twitter.com/My_QIDP
Four States News: https://fourstatesnews.us/2015/05/27/intellectually-disabled-beyond-high-school/
A facility website: http://caringpalmshcc.com/
Facebook: https://www.facebook.com/myqidp

Anyone of the above outlets could (and some do) result in the people you serve in your ICF/IID program being featured.  Maybe they end up featured in pictures, or maybe in a full printed article.  Whatever the case may be, you have to ask yourself, because you know the surveyors will at some point, do you have consent to share the person's information or picture on social media?

In some cases, people believe that because they have a consent to share information with the news or newspaper, that the consent should also cover social media, or digital media.  While that might be true from a legal point-of-view (note: I am not a lawyer and this is not legal advice only my opinion as a QIDP) I would personally doubt that the family and the individual completely understands the social media concepts.

I would suggest that all facilities consider two things:

First, consider the need for a social media policy.  How will you deal when one of your staff post pictures on Twitter of the local dance with the people from your facility?  How will the facility deal with a news station having a YouTube page where they post news stories?  How will you develop your own website with pictures of the individuals?  There is a lot of questions that need to be addressed in a policy.

Second, make a consent.  Ensure that your consent notes not only newspapers and local media, but also social media.  While you can give some examples of social media there is no way you can give all of them, or cover all the new ones that may develop.  I would write something like this "gives permission to appear on social media such as Facebook, Twitter, Tumbler, YouTube and other social media outlets that may be used for positive promotions or to spotlight individual accomplishments or events."

In closing keep in mind that you can never go wrong by obtaining consent from the Individual, the IDTeam, or the Individual's guardian or Surrogate Decision Maker (Texas).  Also keep in mind is that I am not a lawyer and I am not giving legal advice here - If you are concerned and want to go further with your consent to ensure it is completely legal, then I recommend that you consult a licensed lawyer in your state who deals with consent or guardianship issues.   Just remember that social media is likely going to be around for a long time and sooner or later you will deal with it on some level.

Texas Ranked Low For Developmentally Disabled Services

From: https://en.wikipedia.org/wiki/Economy_of_Texas

United Cerebral Palsy (UCP) completes a study each year to determine the best states for people with developmental disabilities and the worst states.  They include the District of Columbia, so the total is 51 altogether in the review (http://cfi.ucp.org/state-scorecards/).  Texas has historically ranked at the bottom, but this year it has moved up….well, slightly.  Texas is ranked number 50 near the bottom.  The only state or district to receive a worse report was Mississippi.

Being one of the largest states, most populated, and one of the best states to start businesses in – at least according to some sources – you would think that Texas would have the ability and funding to achieve a better ranking.  The sad truth is that Texas just doesn’t seem to put too much emphasis on services for people with developmental disabilities.

Consider the job outlook for people with disabilities.  In 2004, supported or competitive employment levels were at a solid 22%, but by 2011, it had dropped to 5%.  This could be an indicator that businesses are not willing to hire people with developmental disabilities.  If these business organization do not hire, then there’s a good chance that state legislators, often receiving the bulk of campaign donations from business, might not feel people with developmental disabilities rank very high on the scale of importance.    A further factor in the equation seems to be families receiving support went from a high of 27,677 to 20,156 by 2011.  That’s just over a 7,000 drop in services.  As recently as two years ago a mother of a disabled child told me that “Texas has nowhere near the services and programs that my previous state offered.”   This parent planned to seek services by moving to another state.  

One of the brighter spots on the assessment did show a drop in the number of people living in institutions from 4,996 in 2005 to 3,547 in 2013.   Another not-so-surprising statistic reported was the rise of HCS (called HCBS for Home and Community Based Services on the chart) or Texas Home Living (not mentioned in the report TxHmL) use which saw a steady rise to 28,838 while ICF (intermediate care facilities) experienced a decrease down to 9,025.  This shift is not likely due to the differences in the services as much as it is to do with the money.  The daily rate average for the state is cheaper for HCS services than it is for ICF programs.  Already providers have seen a trend of movement in the waiting list.  While some people have been on the list for years waiting for services, people in the 15-22-age range seem to come up on the list more often for HCS placement.  This appears to be regardless of how long the person has been on the waiting list.  This trend would indicate, at least to this writer,  a steady or unwritten drive by the state to “age out” the ICF programs by filling the HCS programs with the younger population.  Whether it is a conscience or unconscious move on the state’s part, it is certainly a factor of saving funds by utilizing the more cost saving programs. 

As indicated above, the fundamental problem for Texas is the same as many states running along the bottom of the list.  Money.  Without money services have a tendency to be inadequate and fall short of the needs of the people they are meant to serve.  Providers of ICF and HCS programs are faced with a “minimal” set of standards to meet from the federal guidelines and the state guidelines, but without proper funding it is difficult to exceed and sometimes meet those minimal standards. 

Another or perhaps major problem for Texas is that not everyone fits in a nice little box.  Some people need the State Supported Living Centers, while others would be better served in an ICF, and yet again others might be best served in an HCS or TxHmL.  With an HCS waiting list that seems to be dominated by the age factor, such factors as abilities, or readiness for the HCS programs, appears to be overlooked.  It should also be noted that private organizations, both ICF and HCS, depend on the local LAR (Legally Authorized Representative) for the state to provide most of the placement referrals.  Since the state operates the Supported Living Centers, and their own ICF and HCS programs, then they naturally tend to fill those openings first when someone seeks services regardless of the true need of the individual.  When all those factors are overlooked, you end up with people staying in programs that honestly do not meet their needs and thereby helping statistically to cause the state to remain at the bottom or near the bottom in services provided.

A state as large and as financially powerful as Texas should not be ranked at the bottom for services for people with developmental disabilities.  The fact is with some minor modifications Texas could have outstanding programs, but it is going to take the people of Texas pushing the legislators to do something.  There needs to be funding set aside for programs, and there needs to be a review and modification to the the way the waiting list and placement is handled.  Private providers, state providers and the individuals and families of those individuals with developmental disabilities must come together to develop strategies that ensures the appropriate services are provided regardless of the program needed.