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

by | Aug 12, 2013 | 2013 changes, advocacy, guardianship, policy, providers

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.”