Public Comment / HB 178: Post-employment Restrictions Provisions

Updated: 1 year ago
Public Policy

January 24, 2023
Nate Crippes / Public Affairs Supervising Attorney
Andrew Riggle / Public Policy Advocate
(801) 363-1347 / (800) 662-9080

My name is Nate Crippes, and I’m the Public Affairs Supervising Attorney with the Disability Law Center. We believe that HB 178 creates concerns about informed choice for people with disabilities using Medicaid waivers and presents potential problems under federal Medicaid regulations including person-centered planning processes, the Home and Community Based Services Settings Rule and Medicaid waiver assurances.

It is our understanding that in some cases a consulting company for small Medicaid waiver providers approaches staff of currently licensed providers, including house managers and administrators, to offer assistance to staff in creating a new Medicaid waiver provider business. That consulting company then charges a percentage of the new provider’s Medicaid reimbursement income for these services.

We further understand that the staff who plan to create a new company contact residents with disabilities at their current provider and ask residents to move to the soon-to-be created new provider. Some Medicaid waiver providers have begun to include non-compete clauses in employment contracts to, in part, protect vulnerable clients with disabilities from solicitation by their staff and to ensure that processes that support informed choice are in place. Medicaid waiver provider staff have a special relationship with the vulnerable clients they serve (who are primarily their own guardians), and we are concerned that clients in these situations are not being given informed consent as required under the federal person-centered planning regulations, the HCBS settings rule regulation, and under Medicaid waiver assurances that waiver participants are assured health and welfare, as well as informed choice regarding their services. It should be noted that while Medicaid waiver case managers or “support coordinators” are prohibited by their contract with the state from soliciting Medicaid waiver clients, but the contact for other Medicaid waiver providers is silent as to the solicitation issue.

This decision to move to a provider working with these consultants is made without the help of a support coordinator and the rest of a person’s person-centered planning team as would typically happen when a change of provider occurs, and thereby does not insure that individuals are aware of all of the benefits and potential hazards of the decision to move to the newly-created provider. Individuals are not given the option between the new provider and a non-disability specific setting and are not informed of their right to be supported to seek competitive, integrated employment if they so desire, in violation of the HCBS settings rule and the person-centered planning requirements. We would urge the committee to support informed choice and appropriate person-centered planning processes by continuing to support appropriate noncompete clauses, and to consider increasing protections against Medicaid waiver providers soliciting waiver participants.

We thank you for the opportunity to comment regarding this important issue.