In the waning days of the 2016 legislative year, Congress passed the 21st Century Cures Act that represented a significant investment in improving access and availability of mental health services nationally. Included in this legislation was a last minute addition titled Electronic Visit Verification (EVV) in Section 12006.
It’s largely believed that this addition that required a “pay for” was driven by the EVV vendor lobby; principally Sandata corporation. Section 12006 requires states that have personal care services programs to additionally report the type of service performed; individual receiving the service; date of the service; location of service delivery; individual providing the services and time the service begins and ends. This requirement is, at the very least, a burden on every Medicaid agency in the country.
Why would this invasive reporting requirement completely unrelated to mental health services be included in the law? Ultimately it was because a few large healthcare corporations knew they could make a lot of money by requiring state Medicaid agencies to report this new information and companies like Sandata and Optum had the software and training available to implement it albeit for a hefty price.Y
In order to justify this burdensome reporting requirement company lobbyists alleged fraud, waste and abuse in the personal care services program was extensive and could be stopped by using their software. The Industry along with congressional staffers even went so far as to come up with a figure of approximately $125 million that could be “saved” over a ten-years by requiring EVV. This amount based on absolutely nothing became a pay for essentially guaranteeing that it will save that much in 10 years. To sweeten the deal, the legislation appropriated Medicaid funding to the states to purchase software and for ongoing maintenance.
During a congressional oversight committee hearing the Congressional Budget Office (CBO) was asked about the $125 million pay for and how it was determined. CBO had no credible evidence to support the allegation that there was a high-level of fraud, waste and abuse in the personal care services program. Based on that, the panel declared the projected “savings” as flawed and unacceptable. Since that time no substantive/credible findings of fraud in the consumer directed personal care services program has been made available by CBO yet states continue to interpret location as using GPS and biometrics in the name of program integrity. Program integrity is code for fraud, waste and abuse.
The myth was exposed. Undaunted, the EVV industry went to work on state Medicaid agencies, who in many cases were willing partners, selling their software and programs that use GPS or biometrics in order to report the time and location of workers providing services. The software is not new to the home care industry and is used often by home care agencies to monitor their employees. It is, however, new to and absolutely contrary to the personal care services program for consumers who direct and employ personal care services workers.
It's one thing if an agency like Home Health Care wants to track their employees but forcing this model on the consumer directed personal care services program is antithetical to consumer control and choice. The EVV Industry and state Medicaid agencies are getting strong pushback from the disability and elder communities as a result. EVV legislation does not require the use of GPS and biometrics in the location provision. Thus, for example, California uses a web portal for EVV that does not require GPS or biometrics and simply addresses the location provision by requiring that the worker and consumer indicate whether the service was delivered in the home, community or both. This method is acceptable to the disability and elder communities because it preserves worker and consumer privacy rights. Equally as important is that workers much prefer this approach and are more likely to continue working in the field.
Because of this resistance to current EVV software that uses GPS and biometrics to surveil workers and consumers, approximately 38 states have filed for extensions with the Center for Medicare and Medicaid services (CMS) to give them more time to implement EVV. The current law requires that states improve stakeholder outreach to determine the most appropriate model to implement EVV as well. These states have until January 1, 2021 to have “the least burdensome” program in place or they will risk the loss of Medicaid funding.
A perfect storm is brewing. An additional consequence of the law is that it adds yet another layer of bureaucracy to programs and recipients and includes privacy rights infringement for workers to each state’s already overburdened Medicaid agencies. Both of these elements are time consuming, invasive and pushing away qualified workers and further exacerbates the existing crisis in recruiting and keeping good personal care services workers nationally. Most states that administer the consumer directed personal care services program either through HCBS, MCO or some other method are already experiencing a serious worker shortage that negatively impacts disabled clients and elders who rely on these workers to live in the community outside of institutions like nursing homes. In several states, disabled and elder personal care services consumers have defaulted to emergency rooms and short term nursing home stays because they can’t find adequate and appropriate workers.
It's time for Congress to provide clarification of the EVV program requirements; particularly location. Cures 2.0 is being discussed in the Energy & Commerce Committee that would make technical fixes to the law and is the perfect vehicle to address the chaos and confusion that's playing out nationally with EVV. Representatives Diana DeGette and Fred Upton have taken the lead. They’ve collected written suggestions for improvement from over 200 people/ organizations nationally and are analyzing responses. Unfortunately, the disability community was not included in the distribution of invitations to comment but NCIL did find out three days before the closing date and submitted a decent amount of testimony.
Further, we’ve heard that there is not much interest in including clarification of EVV in the legislation. This is unacceptable and we must contact our member(s) of the Energy & Commerce Committee and ask that they work with representatives DeGette and Upton to clarify the location provision of EVV by including language that prohibits the use of GPS and biometrics. Failure to act quickly lessons our chances of getting these changes made to the bill.
We can’t afford to miss this opportunity because the price we’ll pay in the future is that the many decades of building a consumer controlled personal care services program in almost every state will slowly regress into an agency run model.
Please join us so together we can stop this tragedy from happening.