Oregon Developmental Disabilities Director: “Guardians Can Be Paid with Right Processes in Place”

Oregon Developmental Disabilities Patrice Botsford makes a big announcement on the payment to guardians issue this afternoon:

“WE HAVE GOOD NEWS!!!! Today our federal partner, the Centers for Medicare and Medicaid Services (CMS) informed Oregon that guardians can be paid to provide care to their loved ones with the right processes in place. We are working quickly with CMS to clarify those processes and to develop a new notice for beneficiaries, but we wanted to share this information with you as soon as possible. When those details are worked out, we will provide you with an update and more information about next steps.

Thank you for your patience as we have been working through this difficult issue. We know that this issue is important and that the uncertainty about how we are moving forward is stressful for families and their loved ones. We appreciate the care and concern we have heard these past weeks and we remain committed to providing you with the most up-to-date, accurate information that we have.” Patrice Botsford Director, DHS Office of Developmental Disabilities Services

Big Changes in Oregon’s I/DD Service System | Part Two: Payment to Legal Guardians

Part Two: Payment to Legal Guardians
By Larry Deal, Independence Northwest Executive Director

NOTE: The State has reversed its take on payment to Guardians. Check out the latest details from Patrice Botsford here.


As mentioned in last week’s piece, Oregon’s Department of Human Services has chosen to change its primary funding source from Title XIX Waiver services to the new Community First Choice Option/K Plan. This change increases federal revenue for Oregon and expands services for seniors, people with physical disabilities, and children and adults with intellectual and developmental disabilities. With the additional revenue comes new mandates and expectations.

Perhaps the most controversial change thus far is the mandate that legal guardians no longer be paid as care providers through brokerages. Keep in mind that legal guardianship requires a court order and is not something that automatically occurs when an individual with a developmental disability turns eighteen. Guardianship also requires annual renewal action by the guardian.

Per ODDS (Oregon Office on Developmental Disability Services), CMS (Centers for Medicare and Medicaid Services) views payment to a legal guardian as a conflict of interest (see CFR 441.505.) When the funding was coming primarily through waivers, guardianship payment was permitted, but because Oregon has chosen to change its primary funding to Community First Choice Option/K Plan, the expectation has changed. It is now consistent with the regulations for how services are implemented for seniors and people with physical disabilities.

Statewide, well over 400 guardians are paid to provide services, the majority of them supporting people served by brokerages.  At present, brokerages and CDDPs (Community Developmental Disabilities Programs) have been directed by the state (ODDS) to begin conversations with our customers and their legal representatives about how to come into compliance with the new standards. We have requested clear, written materials to be shared with families and individuals regarding this directive.

As you can imagine, there has been a lot of concern and discussion on this topic. There’s quite a bit at risk here and clear, direct communication from all parties is key right now.

In a recent mailer to its members, SEIU (Service Employees International Union) claimed “some brokerages and CDDPs have incorrectly informed parent providers that they can no longer be their child’s guardian if they want to be paid as a provider. This is not true.” We share SEIU’s concerns on this change, but their mailer is misleading. ODDS has clearly and publicly stated this is their policy and has instructed brokerages and CDDPs to share this mandate and begin the conversation on this planned change. If one follows the directive up the chain, its genesis is with the government, not brokerages and CDDPs.

Two weeks back, ODDS Director Patrice Botsford released an extensive statement explaining the state’s position. “Families must make a decision whether the guardian will remain in place and not continue as the paid service provider and a new service provider chosen, or the guardianship may be terminated or transferred… We are asking that their decision be relayed to us via their case manager no later than December 1, 2013 for January 1, 2014 implementation. Read her entire statement here.

In addition to the statement, ODDS released a two-page Frequently Asked Questions document highlighting the specifics of the change. It’s worth a read.

Long-time disability rights advocate Representative Sara Gelser (D-Corvallis District 16) has become involved in the discussion. She recently began requesting stories through posts on her Facebook page. Per a post on August 7th, Rep. Gelser had met with Patrice Botsford and others at ODDS. Wrote Gelser: ” I had a very good meeting today with Patrice Botsford and her Deputy (Director) from the Office of Developmental Disabilities. I am feeling hopeful that we can find a solution that will meet everyone’s needs and will cause minimal disruption. Thank you for your stories. Please keep sending them, as they are very helpful.” She went on to thank Patrice and her team for partnering for a solution. Sara Gelser is beginning to look at potential legislative action that could influence the future.

At present, ODDS is developing an exception policy that will potentially allow for some guardians to be paid under the K Plan. The exception policy is still in draft format and will be reviewed by CMS in the next week or so.

Advocates throughout the system continue to comb through federal regulations and state law to see if there are other approaches that can be taken to address the situation. In the meantime, if you would like to be involved in the discussion and share your story, you have a few options.

Later this week, we’ll send out another missive on the Designated Representative piece. The representative issue is linked to the guardianship discussion, but deserves its own attention due to its complexity. For the sake of clarity, we’ll address it separately.

Additional Resources:

08/15/2013 UPDATE:
DD Director Patrice Botsford shared the following new information on ODDS’ Facebook page: “I wanted to quickly update you on where we are on our request for exception on guardians as paid caregivers. Our request is currently in the hands of CMS and their attorneys. We have near daily communication with them, and are looking forward to the best possible outcome. We are as anxious as you are, and we will post here as soon as we have any updates. Keep up the good work, and thank you all again for your advocacy and support.”

Policy Change Forthcoming for Legal Guardians Paid to Provide Care to Brokerage Customers

Beginning January 1, 2014, guardians will no longer be allowed to be paid with brokerage support services funds. Please see below for a statement released today by Patrice Botsford, the Director of Office of Developmental Disabilities at the Department of Human Services. Please check in with your Personal Agent if you have questions.

View a FAQ document about the change here.

To: All ODDS Staff & Stakeholders
Message from DHS Director of Office of Developmental Disabilities Patrice Botsford

I wanted to talk with you about some of the new state plan (K Plan) changes that are beginning to emerge in our Developmental Disabilities program. Last month, I had the opportunity to talk with large and small groups across the state, and I hear the great appreciation each community has for its CDDPs, Brokerages and Providers. I also hear their questions and concerns about how the DD program will change in the near future for the people and families we serve.

One of those concerns is the issue of the state’s inability to continue to pay legal guardians and representatives as service providers in the new state plan.

This is a big issue for many in our community, and it is important to note that this change is not something we asked for or anticipated. It is a federal regulation of the Center for Medicaid and Medicare Services (CMS), and we are required to comply in order to secure the additional 6% funding that the K plan brings.

All of us at ODDS are aware, sensitive and concerned about the impact this will have on families as they make very personal and family-specific decisions regarding their status as guardians or representatives.

Families must make a decision whether the guardian will remain in place and not continue as the paid service provider and a new service provider chosen, or the guardianship may be terminated or transferred to another person through probate court so the current guardian can remain the paid service provider.

In order to provide as much time as possible we are asking that their decision be relayed to us via their case manager no later than December 1, 2013 for January 1, 2014 implementation.

No one is required to make their adult child a ward of the state, and this change does not mean that the parent is abandoning the adult child, or that the state doesn’t care about the family and the importance of those relationships.

We do care, and that’s why we have all decided to do the work we do to improve the lives of the individuals and families we serve. It is important to everyone that those family relationships remain strong, healthy and ongoing for as long as people desire them. The K Plan allows us to be better stewards of the investment Oregonians make in services for people with intellectual and developmental disabilities, and I am personally grateful for the many people who have sent their concerns and thoughtful remarks.

Again, thank you for the incredible work you do, the thoughtfulness with which you do it and the support you provide to the I/DD community.

~ Patrice Botsford

OCT 16: Preparing for Adulthood – Social Security, Benefits Planning and Guardianship

Announcing an upcoming workshop for high school transitioning students and their families.

In collaboration with Project Employ, Family and Community Together (FACT) will be hosting Preparing for Adulthood—SSI/SSDI, Benefits Planning, and Guardianship,” on Saturday, October 16, 2010, from 9am – 1pm, at the Arc of Washington County—4450 SW 184th Avenue in Aloha, 97007.

This FREE workshop is open to ALL interested families in the Tri-County Metro.

  • Alan Edwards from the Social Security Administration will be presenting information on SSI/SSDI.
  • Eugene Rada from the Office of Vocational Rehabilitation Services (OVRS), Competitive Employment Project, will speak on benefits planning—preserving an individual’s benefits while pursuing employment.
  • A parent panel will share their perspectives as each came to their decisions of pursuing or not pursuing guardianship.

Visit Oregon Helps to Find Out What Services You’re Eligible For

Oregon Helps is an online clearinghouse that takes you through a series of questions online to determine what services you or your loved one might be eligible for. The site’s services are available in multiple languages. Check it out here.
Services covered include:

Food and Nutrition

  • Food Stamps
  • Emergency Food

Housing and Utilities

  • Federal Housing Assistance
  • Low-Income Energy Assistance (LIEAP)
  • Portland Water Bureau’s Financial Assistance Program

Children and Family Resources

  • National School Lunch Program
  • Women, Infants, and Children Nutrition Program(WIC)
  • Temporary Assistance for Needy Families (TANF)
  • Employment Related Day Care (ERDC)
Health Care

  • Oregon Health Plan

Veterans’ Services

  • VA Health Care System
  • VA/Military entitlements
  • Veterans’ Home Loans

Financial Benefits

  • Earned Income Tax Credit (EITC)
  • Child Tax Credit (CTC)
  • Federal Elderly/Disabled Tax Credit
  • Individual Development Accounts (IDAs)
  • Oregon’s Working Family Tax Credit
  • Oregon Dependent Care Tax Credit
  • Property Tax Deferral
  • Home Care Tax Credit
Senior and Disabled Services
  • Social Security
  • Social Security Disability Insurance
  • Supplemental Security Income
  • Medicare and Medicare Savings Program
  • Medicaid Long Term Care
  • Senior Drug Program
  • Employed Persons with Disabilities
  • Senior Farmers’ Market

Guardianship Handbook from DRO

Disability Rights Oregon has published updates to its Guardianship Handbook. For a comprehensive look at the issue of guardianship, check out this helpful guide.

From the introduction:

The purpose of this Handbook is to provide general information to individuals regarding their rights and protections under the law regarding guardianship. A guardian may be appointed for an adult person only as is necessary to promote and protect the well-being of the protected person. A guardianship for an adult person must be designed to encourage the development of maximum self-reliance and independence of the protected person and may be ordered only to the extent necessitated by the person’s actual mental and physical limitations. ORS 125.300(1).

Under Oregon law, a judge can appoint an adult to make important decisions about the care and well-being of another person. This is called a protective proceeding. In a protective proceeding, a judge can appoint a guardian, a conservator or both. In an emergency, a judge can appoint a temporary guardian, a temporary conservator or both. A judge may order action be taken on behalf of an adult without appointment of a guardian or conservator. This is called a protective order.

Any adult can file a petition in court to have a guardian appointed for another person. Separate laws cover protective proceedings for adults and children. This Handbook is about adults only.

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