ARRM's Daily Dispatch

ARRM Alert: Judge’s order continues payments to providers in shutdown

Ramsey County Judge Kathleen Gearin ordered Minnesota budget officials to keep paying for “critical core services” as identified in Governor Dayton’s original petition in a shutdown and has appointed former Supreme Court Chief Justice Kathleen Blatz as the special master to hear appeals for other services to be funded during a shutdown. A copy of the decision is available here.

The list approved by Judge Gearin is not as expansive as was requested by the Attorney General, but does include funding for all of Medicaid; waivered services, nursing homes, health services, and related provider payments. The judge specifically ordered that the state must meet its obligations to fund federal programs, even if no appropriations are completed on time. Additionally, the judge’s order also included continued funding for Group Residential Housing (GRH), Minnesota Supplemental Aid (MSA), and General Assistance (GA), declaring all three programs as essential.

One area not included in the original court order is background studies. During the 2005 shutdown, these were deemed essential. By appointing a special master, the court has created a venue that parties can petition to have additional functions declared essential. Another area we are exploring is funding for Semi-Independent Living Services (SILS). We are continuing to analyze today’s ruling for other implications, but we will petition to have background studies and SILS funding restored once a process for hearing these issues is established.

There are many organizations that petitioned for their funding to continue. Some were not included, while it appears the bulk of ARRM member-program funding did. Kudos to all who participated in this effort - everyone from those who helped craft our legal documents to those who contacted the governor’s office to get our services included in his initial submission to the court.

We are continuing the monitor the situation, explore legal options, and make our case to decision makers to protect ARRM members in whatever final budget agreement is reached. If you have specific questions please contact us directly at cwieber@arrm.org or bnelson@arrm.org.

--Bruce Nelson and Craig Wieber

Shutdown and special session: ARRM busy behind the scenes

While you have been busy advocating for disability services with your legislators, ARRM’s direct lobbying team has been hard at work in St. Paul.

Government shutdown

ARRM’s brief is one of six parties before Ramsey County District Court Judge Kathleen Gearin, along with the Governor, Attorney General, Solicitor General and  House and Senate Counsel.

ARRM met with DHS Commissioner Lucinda Jesson and DHS CFO Chuck Johnson and the Governor’s senior health and human services advisor Dan Pollock regarding our essential services and the importance of continuing background studies in the event of a government shutdown. These meetings also focused on ARRM and DT&H issues in the overall HHS budget.

Final HHS budget bill for special session

ARRM has made our case on the major funding issues facing our members for the eventual special session with:

• House Health and Human Services Finance Committee Chair Jim Abeler
• Senate Health and Human Services Chair David Hann (meeting today)
• House Health and Human Services Reform Committee Chair Steve Gottwalt
• House DFL lead legislators on human services, Reps. Erin Murphy and Tom Huntley
• House Ways and Means Chair Mary Liz Holberg
• Senate Finance Committee Chair Claire Robling
• Lead staff in Senate Finance and House Health and Human Services.

It is because of a strong membership that ARRM has been able to devote considerable staff expertise and resources to this impending crisis.

Shutdown legal update    

Today, a legal ruling was issued on the operations of the judicial branch if the governor and legislature cannot come to an agreement before Thursday. The judge in this portion of the case, Judge Bruce Christopherson, ordered that the courts will remain funded despite a provision in the state’s constitution that says no state money can be spent without an appropriation passed by the legislature and signed by the governor. The order provides funding for the courts at current levels.

Because another judge will rule on rest of the operations of state government, the outcome in this case may or may not be relevant. Judge Christopherson found that the constitutional rights of individuals would be violated if the courts did not continue to operate. This is very similar logic to what the court found in the 2005 partial shutdown case. It is encouraging that the judge did not issue a ruling contrary to the previous decision.

Judge Gearin took the larger case under advisement last Friday, June 24^th, and has not indicated when she would issue a ruling. As all this is going on, Governor Dayton and legislative leaders continue to meet and work out an agreement on an overall budget, but so far have not made much progress. They have until June 30^th, when the state fiscal year ends.

As other developments in the case occur, we will post the most updated information on our blog. If you have specific questions, please feel free to contact me directly at cwieber@arrm.org.

-- Bruce Nelson, CEO, and Craig Wieber, Chief Fiscal Analyst

Shutdown impact on background studies is unclear

ARRM continues to field many questions regarding the ability of providers to compete background studies through NETStudy during a state government shutdown. Rest assured, we have been working diligently on this issue and are in contact with the licensing division of DHS, Commissioner Lucinda Jesson, and legal counsel. At this point, we unfortunately have more questions than definitive answers, but will update you with the salient details as this issue becomes more clear-cut.

--Barb Turner, COO

Further developments on shutdown lawsuit

As part of yesterday's court action, Judge Gearin ruled on the motion filed by ARRM and other disability providers to intervene directly in the case.  During the hearing, the judge heard similar requests by many parties who wanted full participation in the lawsuit.  The attorney general and the governor's council objected to all of the motions except ours.  The judge asked all of the groups if they would rather participate as Amicus Curiae.  Amicus Curiae means that you are supporting the position of one of the parties involved in the suit, but aren't directly participating.  If you don't like the ruling you are not able to appeal the decision yourself - you must rely on another group that is directly involved.

In the end the judge heard the motions, and she granted our motion for intervention from the bench.  This means that if the ruling in the case goes in a direction we do not like, we are still able to take legal action without starting the whole process from square one.  ARRM's position is that it is better to be directly involved than to rely on another party to make sure that provider payments are protected in the event of a shutdown.

As always, we will continue to monitor the situation and update members.  If you have questions, please contact me directly at cwieber@arrm.org.

--Craig Wieber, Chief Fiscal Analyst

Legal developments for a possible government shutdown

County Judge Kathleen Gearin had her first hearing Thursday on a possible state government shutdown. Here is an in-depth story about today’s developments. 

Early in the proceedings, the judge explained that there would not be a general ruling about what functions would continue today. However, there were two key issues that she ruled on today. First, the judge rejected Governor Dayton’s request to have a court-appointed mediator work through the current budget impasse. Second, the judge denied motion by four Republican senators to stop the courts from approving the spending of state money during a shutdown. The judge’s ruling on this matter was based on a technicality (the four senators cannot have a position separate from the entire Minnesota Senate), so the issue of whether spending can still happen during a shutdown could still be contested. 

The court recessed around noon and came back in the afternoon to hear additional arguments on the primary question if funding and core services would continue under a government shutdown. The judge commented this budget crisis is "unique" and "far more significant than any other" in Minnesota history. At the end of the hearing, Judge Gearin commented she was unlikely to issue a ruling this week.

We will continue to provide updated information members about the court actions.  Please continue to check our blog often in the upcoming days for the most recent developments.

--Craig Wieber, Chief Fiscal Analyst

Other services of interest to providers impacted under a shutdown

We’ve been receiving questions from members about ancillary services for our clients.  Here’s a brief description of other services impacted under a government shutdown. These are all proposed – we won’t know a final answer under Ramsey County Judge Kathleen Gearin makes her final ruling, and she hasn’t issued a timeline when that might happen. 

Services at the Department of Human Services

• Day Treatment & Habilitation Services – Under the governor’s petition, the entire Medicaid program would continue. In the 2005 government shutdown, the entire program was deemed essential. Given that precedent and the governor’s petition, it is highly unlikely the courts would find otherwise.

• DD Semi Independent Living Services (SILS) – The governor’s petition did not include funding for SILS. SILS grants are allocated to the counties and are 100 percent state funds. It was not included in the 2005 shutdown list of essential services. There isn't enough information at this point to determine whether or not it will continue.

• Background Studies – Background study functions were not included in Governor Dayton’s petition to the court, but were deemed essential in the 2005 shutdown by the special master. If the judge appoints a special master it is possible they would again add these functions, there’s no way to know. If one is appointed, we will work with the new special master to make our case.  

Also, in anticipation of background studies not being available during a shutdown, ARRM is working on what other options for providers might be. We have been in contact with the licensing department and will continue to work on this issue. 

Services at Other State Agencies

• Metro Transit Bus Service and Metro Mobility – Both of these functions are run by the Metropolitan Council, which is a political subdivision of the state (like a county or city). They receive state dollars for their operations, but also from other sources. They aren’t wholly dependent on a state appropriation for their operations. According to their website, they plan to continue all their transit services during a shutdown, unless directed otherwise by the courts. The governor didn’t have any recommendation for them in his submission to the court, so it’s fairly safe to assume those services will continue. However, an extended shutdown would draw down their other resources and at some point they’d need to get state funding to continue.  When that might happen is unknown.

• Disability Determinations; Unemployment Claims Processing and Payment – The governor included these function on his list of essential services submitted to the court for the Department of Employment and Economic Development. There is no precedent for these because that particular department received an appropriation in the 2005 session.

• Vocational Services Authorizations or Claims – These functions were not included in the governor’s list for the Department of Employment and Economic Development.  Again, there is no precedent for these because the department received an appropriation in the 2005 session prior to the shutdown.

• Most State Grants or Contracts – Unless specified by the governor, all grants or contracts will not operate after July 1^st.

For a complete listing of all the services the governor has deemed essential, go here. We will continue to monitor any and all developments on the possible state government shutdown. As always, if you have questions please feel free to contact the ARRM office. 

--Craig Wieber, Chief Fiscal Analyst

The governor says we're essential: What happens now?

Even though you likely received an Alert from ARRM yesterday, we are re-posting that information here to ensure you get this critical update. To recap: Monday afternoon, the governor announced that in the event of a government shutdown, payments to ARRM members under Medical Assistance, GRH and MSA (shelter needy) would continue. Obviously, this is a position ARRM endorses and appreciates.

A link to that announcement is here: http://mn.gov/governor/newsroom/pressreleasedetail.jsp?id=102-13681

What will happen now?

Yesterday, our attorneys from Halleland Habicht filed an amicus brief with Ramsey County District Court on behalf of ARRM, MnDACA and MHC. The brief makes a case that in the event of a government shutdown, the services ARRM members provide are essential and therefore your payments must continue. The matter will be before Ramsey County District Court Judge Kathleen Gearin this Thursday. Her ruling is expected to come within hours or very few days after the hearing.

At the same time, four Republican senators are asking the Minnesota Supreme Court to prevent a district judge from intervening in a budget impasse, which would presumably result in a different shutdown scenario than those proposed by Gov. Mark Dayton and Attorney General Lori Swanson. According to the Star Tribune, the GOP brief states that "only funding required by the state's constitution, federal mandates or statue should continue." Because the senators’ brief is unclear whether "federal mandates" should include services funded by Medicaid, we are exploring the option of filing a brief in federal court to restrain the Minnesota Supreme from terminating Medicaid payments to ARRM members. It’s possible that a supreme court ruling in favor of the GOP plaintiffs would necessitate a special session to pass a “lights on only” bill.

We believe that with the governor and attorney general now in agreement, the precedents set in 2005 and 2001 will guide the courts this year. During those shutdowns, disability services were considered essential, and payments to providers continued to flow as legislators hammered out the final budget.

No one knows when Gov. Dayton will call a special session. It could be a long time until he and legislative leaders agree to a budget compromise. That’s why it’s so important to get a positive ruling in the courts and to maintain our/your advocacy with legislators. To keep disability services a top priority, we encourage you to contact your legislators and sell them on the concept that our services are indeed valuable and should be adequately funded. Your work up to this point has made a huge impact, and we urge you to soldier on despite this unusually long session.

--Barb Brynstad, Communications Director, and Bruce Nelson, CEO

ARRM petitions the court to continue member payments

Later today (Monday), ARRM will file an amicus (friend of the court) brief in Ramsey County District Court making a strong case that, in the event of a government shutdown, the services ARRM members provide are essential and therefore your payments must continue.  Our petition demonstrates that payments are required to continue supporting people with disabilities and that, without payments, people would be harmed.

ARRM worked throughout the weekend with attorneys from Halleland Habicht to build our case and get the filings in by today. The two DT&H associations, MnDACA and MHC, are joining ARRM in the petition. The district court will hear the matter on Thursday.

Prior to ARRM’s filing the Attorney General Lori Swanson filed a petition that would deem your services as essential. The Gov. Mark Dayton’s petition also deems your services essential, but would not continue provider payments after July 1^st.

At least two three other petitions are expected today (see update below for the third petition):

• One to the Minnesota Supreme Court from four Republican state senators who will maintain that the state constitution requires that funding be appropriated through the legislative process to sustain services. In other words, all state government functions would come to a grinding halt.

• An amicus in district court from The Long Term Care Imperative (a collaboration between Care Providers of Minnesota and Aging Services of Minnesota) supports of the attorney general’s petition.

Meanwhile, the stalemate between Gov. Dayton and legislative leaders continues and some legislators are pushing for a special session to pass a “lights on” bill that would maintain current services and current funding levels.

ARRM is also meeting with key health and human services legislators this week on both budget and policy issues for a special session – whenever it does occur.

Clarification on ordering supplies

On Friday, ARRM sent an email blast to member decision makers and upper-level management, providing contingency planning suggestions in the event of a state government shutdown. One thing we suggested was that ARRM members may want to order supplies. It was not our intention to suggest that you should attempt to get supplies outside of what is allowed; it was a reminder that ordering supplies -- as allowed -- prior to the end of June may be helpful.

Providers of supplies do have the right to give notice to recipients and customers (i.e., ARRM members) if they intend to stop providing supplies. Some suppliers have already sent notices to recipients that if there is a government shutdown, they will not be providing supplies after July 1. Thus, you may want to check with your vendors to see how this is being handled.

UPDATE:

A petition from at least some of the medical supply companies that provide necessary products to ARRM members is expected today, as well.

--Bruce Nelson, CEO, and Barb Turner, COO

Possible government shutdown: How should providers react?

What are the latest developments around a possible government shutdown?
On June 13th, the attorney general filed a petition in Ramsey County court to keep what she considers essential government functions running if the state does not have a budget as of July 1st. Her interpretation did not include a specific list, but argued broadly that functions protected under the state and federal constitutions continue. It is available here. On June 15th, Governor Dayton filed his own petition and a list of services he considered essential. It is available here. His interpretation was not nearly as expansive. These lists will be used by the Court in making the final determination of what services are essential and would continue if a budget agreement is not reached before the start of the new fiscal year.

What does the governor’s petition request?
First and foremost, Gov. Dayton is asking the Court to appoint a mediator that would bring resolution to the state budget impasse. This mediator is would be tasked with helping the governor and legislative leaders work through their differences. The mediator would not have the authority to compel an agreement. The governor is requesting a very narrow determination of judicial power, and sees the list of essential services as much shorter than that advocated by the Attorney General or that was approved in the 2005 shutdown. Should the mediation fail, the Governor is asking that his list of essential services be honored. No order should be issued by the Court until mediation has been allowed an opportunity to reach a timely solution.

What services did the governor list as essential?
The governor’s list is available here. The programs identified impacting ARRM members include:
• Medical Assistance
• Minnesota Supplemental Assistance, including Shelter Needy
• Group Residential Housing
• Minimal administrative functions to run these programs

What's NOT on the list?
While the governor requests these entitlement programs continue, his document specifies related provider payments will not. So there would be NO payments for services. It is unclear how individuals can receive services without paying providers.

Now what?
There is a hearing next week where Ramsey County District Court will respond to the filings by the Gov. Dayton and Attorney General. If there is no agreement by July 1st, the court’s ruling will determine the services that continue until the governor and legislators reach an agreement.

This morning (Friday), ARRM met with representatives from MHC and MnDACA, organizations that represent many of the day service providers in Minnesota. We anticipate that both MHC and MnDACA will join with ARRM in any legal action that ARRM pursues. Both ARRM and the day service providers have a unified goal of being identified as “critical services” and getting paid for the services we provide during a government shutdown. At this time, we don’t know whether or not day programs would continue to operate during a shutdown. ARRM will continue to work closely with MHC and MnDACA and will provide information to ARRM members as it becomes available

Throughout the weekend, ARRM will be developing a petition to the court noting why your services are essential and must be paid. Our arguments are uniquely compelling as the lives of our most vulnerable citizens are at stake, you have no other revenue sources and you have very little reserves to cash flow a shutdown. In addition, we’ll decide today whether to join forces with other parities that meet these criteria or move independently with the DT&Hs.

What should ARRM members do in the interim?
Even though ARRM is doing everything possible to make sure our members will continue to be paid for services after June 30th, we would be we remiss if we failed to offer contingency planning tips in the event of a government shutdown:

• Billing: Because we don’t know when an agreement may be reached or how long a possible shutdown could last, providers should submit all the claims they have as soon as possible. The next billing date for June payments is June 30th. Make an effort to submit all claims you have to that point by this date.

• Cash flow: If you have not established a line of credit, get one. We can’t say for sure if provider payments will be deemed essential. They were in 2005, but the court could find differently this time around. If they aren’t, you’ll need access to credit to meet your needs until Medicaid Assistance funding is restored.

• Staffing contingencies: It is unlikely that ARRM member services would be paid and DT&H would not, but ARRM members should be prepared to staff 24/7 if day programs are unable to provide services.

• Grassroots advocacy: ARRM has issued an Alert, asking providers, staff, family members and self advocates to call and email government officials and lawmakers with the following message: Providers of disability services must continue to receive payments after June 30th in order to provide essential services for Minnesotans with disabilities.

Also, ARRM will be working on determining whether DHS staff will be processing background studies after June 30th, and whether there will be staffing for Vulnerable Adults reports.

Finally, we sent out member renewal information last week. Thanks to those members who have already completed the renewal forms and sent them back. With the state budget negoatiations still in flux, we aren’t asking you to send any dues at this time, but we would appreciate your commitment to membership by completing the renewal form and returning it to ARRM at your earliest convenience.

As always, ARRM will issue timely communications as information becomes available. Meanwhile, feel free to contact ARRM with your questions, feedback, and concerns.

--Prepared by Barb Brynstad, Bruce Nelson, Nancy Peterson, Barb Turner and Craig Wieber

Gov. Dayton releases key documents on government shutdown

Wednesday morning, Governor Dayton submitted several documents to the court on the government shutdown. These included three noteworthy documents: criteria for the prioritization of government services, a legal brief outlining his rationale, and a list of government functions that are necessary to maintain individual’s health and safety the state is constitutionally required to provide.

The most important document, the listing of functions, outlines the programs that would continue under a shutdown. For the Department of Human Services, this includes programs providing entitlements to cash, food, & health care assistance to recipients eligible as of 6/30/2011. This list includes these programs: Medicaid, MFIP/DWP, General Assistance, & Minnesota Supplemental Aid and refugee cash assistance, Group Residential Housing, MinnesotaCare, Food Support, MN Food Assistance Program, and Adoption Assistance. Also included is a minimal level of staff and operating expenses that are necessary to continue these operations. 

At the same time, the listing specifies that while entitlement programs will continue, related provider payments will not. It is unclear how individuals can receive services without paying providers. We will be meeting with other Medicaid providers tomorrow to discuss this and formulate a response.

The governor does not have the final say on which programs and services are essential.  That decision will be made by a Ramsey County judge. We are exploring our legal options in light of this development and will determine the next steps at the June 16 board meeting.

--Craig Wieber, Chief Fiscal Analyst