Texas Supportive Decision Making Act and the ICF/IID Programs

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Provider letter 16-13 (  Information Letter No. 16-13 — Supported Decision-MakingAgreement Act ) introduced the Supported Decision Maker to just about every program in the state of Texas as an alternative to guardianship.  Unfortunately, for the ICF/IID programs, it ultimately presents more concerns than it does supports and may really be a problem for ICF/IID use.

The act presents a “Supported Decision Maker” into the equation for ICF/IID, or a SDM.  It should not be confused with a “Surrogate Decision Maker” from the Surrogate Program that is also known as an “SDM”.  This act is entirely separate from the surrogate program.  It does present some potential concerns when dealing with the surrogate program for individuals who have always depended on that program.

A quick read through the role of an SDM will indicate that the SDM is to gather information and to communicate the individual’s “life decisions”.  This is all done after the individual (the client in the ICF/IID) signs a supported decision-making agreement with the person who will serve as the SDM.   The SDM does not make the decisions, but only helps the person make the decisions and then communicates the person’s decision to the appropriate person(s).  It sounds all straight forward in a basic reading.

After reading over the entire act, the sample agreement, and the responsibilities of the SDM, there are several concerns that may need to be addressed by the next legislative session:

1.  This act does nothing to resolve the “waiting” period faced by ICF/IID providers when it comes to the Surrogate Decision Making Program.  The program often can take months to complete and obtain a legal consent for things needed immediately such as psychotropic medications.  The facility and IDTeam usually has no choice except to give the medications while consent through the Surrogate Program is being sought.  A better use for the SDM would have been to have this person make a decision pending a Surrogate Decision Making Committee’s review of the decision, but that application would only apply to ICF/IID programs that use the Surrogate Program.

2.  This act allows 14 year olds to sign the agreement as a witness.  Since a 14 year old is not a legal adult, there can and will likely be problems with those signatures being considered “legal” witnesses to the agreement.

3.  The act assumes the person with the disability requires assistance with making decisions without any assessment to determine if that individual needs assistance.  Further, if the individual needs assistance in making decisions, then who decides the individual with disabilities has the ability to understand and sign the agreement to obtain an SDM?

4.  Some providers may see this as an avenue to avoid the Surrogate Decision Making Program’s long, and often paperwork intensive, procedures.  If a facility does decide to use the SDM and avoids the Surrogate program, what grounds will a surveyor have to cite the facility regarding consents?  Will the surveyor refer to prior Surrogate use?  The new law creates some confusion here since the SDM presents information and communicates the person’s decision.  If the decision is “I want to take Risperdal,” and that is communicated, then in theory the IDTeam could accept this as consent without using the Surrogate Program.  Again, this is going to create issues for the surveyor and the provider as to how to defend their cases for or against deficient practice.

5.  The act also gives no consideration to the level of disability.  It simply “assumes” that a few questions can be presented to anyone with disabilities and he or she will decide they “want” an SDM.  Based on the wording, a person with Profound Intellectual Disabilities who simply nods his or her head at the right time during questions, could sign the agreement.  The SDM could then present that individual’s “decision” to the rest of the IDTeam based on whatever efficient level of communication the SDM has with the individual.   There would be no way of telling if the person really wanted the SDM or really made the decision as presented.   

6.  The act does not give any consideration to other assessments.  For example, if a person has been using the Surrogate Program for consent for psychotropic medications – does the assessment from the previous Surrogate Application mean the person can not obtain a Supportive Decision Maker?  If the person does obtain a SDM, what grounds does that leave for surveyors who believe the person can not give consent?

7.  Since anyone can be an SDM in this program, it means that Administrators, QIDPs, Managers and even direct care staff could sign the agreement.  For that matter, a person’s physician could sign the agreement, present the information to the person, and then communicate that person’s decision to the facility regarding surgery, medications, etc.  This would then mean that consent is assumed by the person’s decision.

Overall, the Supportive Decision Making Act can likely be a benefit to many programs in the state.  It has been applied to the ICF/IID programs, but probably should not have been.  It will create confusion and in some cases such as situation when a surveyor writes deficient practice pertaining to consents, the SDM may be the fall back defense in an Informal Dispute Resolution (IDR) or even a lawsuit presented by the provider or the SDM.  In theory, the provider could present that the SDM provided the individual’s decision regarding an issue and that the decision was then accepted as consent.    In such a case as this, should it reach a legal level, it would be up to a court to determine if the person had ever been “deemed incompetent in a court of law,” and usually if they have not, then the court considers that person competent to make his or her own decisions. 

The Most Overlooked Disaster Item in the ICF/IID

The state and federal standards are the minimum requirements needed to operate an ICF/IID program and those standards are often low in all areas including disaster plans.  In Texas, a disaster plan has a good deal of items and information required.  You must have food, clothing, medications, etc. as a norm.  There is one important issue that the state requirements overlook when it comes to disasters.

Consider the potential for a disaster at your facility.  You have made preparations.  You have all your required supplies, you have a disaster plan, and you have staff willing to work during the disaster.  The day comes and disaster strikes.  You are not required to evacuate, but your facility is without power, without water, and without phone service.  You expect it is going to be three to four days before these items are restored.  Your staff use flashlights at night, all the medications you need are on-site, you have water, you have food, and things are going along just fine.  You can not see any potential problems, until someone has to go to the restroom.  Because your facility is in the middle of town, it's not like you can go out into the woods.  No, you are stuck with two options.  You could use your three day supply of toilet paper, because you know you have those standards supplies on hand as all ICF/IID programs should.  Once you use your bathroom though you are faced with a major problem.  You could use some of your drinking water to flush the toilet, and hope that the sewer lines are not part of the services that have been cut, or you could have everyone use the toilet and simply leave it until the utilities are back.  The problem with leaving it is that it becomes smelly, it promotes a potential health hazard, and depending on how long the crisis last, it could be a major issue to flush the toilet once utilities do come back.   That's your first option in a nutshell, or you could be prepared.

The second option that you could have in place is to purchase five gallon buckets - the kind you find at hardware stores - and go to a sporting goods store and purchase a toilet seat made for the five gallon buckets - yes, they make a special seat to attach.  Now the people you serve can use the toilet with dignity and still within the bathroom.  Once finished, the bucket can be emptied into a trash bag or cleaned through another approved method.  Between bathroom usage, the bucket can be put outside.  This will help avoid the smell, the health hazard, and the potential for a really bad clogged toilet once the power and utilities do come back.  You may want to consider a few of these buckets so that rotations can be maintained.

The bottom line is the state's directives for a disaster plan and supplies is good, but it does not cover everything.  Consider bathroom needs and the preparation that can go into getting ready for a disaster to ensure you face no problems.

I am not trying to promote anyone's website, but here is a link to a potential toilet bucket - just remember, you can get your own going easily through places like Lowes and Home Depot, and there are several other organizations selling complete kits as well: Bucket Toilet Example 

"Real" Money for Training in the ICF/IID Program

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If you are in Texas, if you go through annual surveys, and if you have individuals living in the ICF training on money management skills (you better have) then you may have faced the "Fake Money" issue.  There are several ICF programs in Texas that have received deficient practice for failing to use "Real" money in their training programs.  Often these programs note several reasons for not using real money such as "The clients will take it," "The staff will take it," or "Real money simply disappears."  By most people's standards, those are all good reasons to make fake money.  The fact is a small purchase of "Fake" money can cover bills and coins ranging from pennies up to hundred dollar bills for training.  If they are lost, torn up, or even thrown away there is usually plenty more in the set to be used (see picture above).  The argument sounds solid until the surveyor walks through the door.

If you have gone through a survey and had "Fake" money, then there is a good chance that it was an area of concern at the least, and possibly written into deficient practice at the most.  Several sets of deficient practice I have seen have listed it as an example under Active Treatment or the famous "W159" or as some call it "The QIDP Tag".  There has always been the possibility of filing an Informal Dispute Resolution (IDR) in Texas over the issue, but the fact is the example of the "Fake" money is usually worked into a tag with several other issues.  In the end you might get the example removed, but in most cases you would still have the tag to contend with for your plan of correction (POC).

After a home recently received the "Fake" money as an example under a tag, I decided to read the specific tag that was written.  This, as warned above, was a situation where several examples were listed to support the tag and planning an IDR simply was not as feasible as correcting the tag.  ONce you start looking at the Federal Standards, you can find the word "Money" mentioned 19 times.  Since "Fake" and "Real" "money" was the issue, there was no reason to search anything else.  Out of the 19 times money is mentioned, the tie to training only falls under tag W126.

W126 deals with encouraging and allowing the individuals (clients) to manage their financial affairs and for the facility to teach them how to manage their money if they do not know how to do it.  It is not until you read into the guidelines that you find the mention of money brought up.  Remember, these guidelines are the guide for surveyors to use when they are in the facility.  In the third full paragraph we find the following statement:

"Money management includes a broad spectrum of programs with varying levels of participation by the client ranging from the use of choice in money expenditures, to an understanding of the concept of money, and ultimately to actual money handling and budgeting. The IDT must not conclude that a money management program is inappropriate based solely upon the level of intellectual or physical disability of the client."

The first thing the reader will notice is that money management "includes a broad spectrum of programs and varying levels of participation".  This statement supports the IDTeam's efforts for some people to manage checkbooks, others to take care of banking needs, and still others to study the meaning and use of something as small as a penny.  In other words, through assessments the IDTeam has to determine at what level and what training the individual needs for money management.   The next interesting thing to note is that the guide states "...ultimately to actual money handling".  This statement would seem to support a facilities use of "Fake" money and even the use of pictures, or references of some kind to something other than actual money.  So, with this in mind, how can the facility use fake money in a world where the surveyors seem to insist on "Real" money for training only?

You basically have two choices.  You could simply use real money and avoid all confrontation.  That would be the simple method.  The second method you could use is documentation.  Documentation would need to be very strong for your case.  For example, what are the reasons you can not use "Real" money?  Maybe it's a case where the person you are training eats the money, throws it away, tears it up during training, etc.  Is there a plan to work toward "Real" money eventually?  You would clearly need to demonstrate the pattern.  For example, a person might use "Fake" money because he tears it up, but part of his training is to not tear the money up.  So, at some point, "Real" money could be used - remember the guidelines state your goal is "ultimately to actual money handling."

There are multiple ways that an IDT could address the issue and justify the use of "Fake" money for training.  However, the bottom line is that you must have solid documentation, justification, and a goal in place to work toward the eventual use of "Real" money.  If you put these in place, it is doubtful that most surveyors would write an example of "Fake" money into deficient practice- and while doubtful that they would write the "Fake" money into deficient practice, it is almost a certainty that they would not write it under W126.   Remember, the surveyor writes the 2567 in such a way that it can stand alone as evidence.  This is done to protect the survey process, the individual's we serve, and to ensure that should the 2567 be called into question through an IDR or another avenue of review, it can stand as evidence alone of the deficient practice.

One final thought before you go out and buy up ton's of "Fake" money to use.  Do your documentation as discussed above, and consider contacting your program manager for the region you operate in (if in Texas).  Talk with the Program Manager about your reason for wanting to use "Fake" money.  If you do that, then odds are the Program Manager will talk with surveyors before they come to your facility.  You may be able to avoid having "Fake" money as an example in the 2567, and you will not have to waste time and resources with an IDR for what will likely be an example in a tag only.

Reference:
State Operations Manual. Washington: U.S. Dept. of Health, Education, and Welfare, Social Security Administration, 2015. CMS. CMS, 14 Aug. 2015. Web. 2 Apr. 2016. W126 page 48-49