|Action||Three Waivers (ID, DD, DS) Redesign|
|Comment Period||Ends 3/31/2021|
In 12 VAC 30 – 122 – 200 the regulations set forth the standards for assigning levels to Individuals but in this version have removed the point indicators for objectively assigning the lower levels making the entire process completely nontransparent and preventing any realistic/meaningful double check on the States assignment compounding the problems with the secret “verification” process for level 6 or 7 (extraordinary medical/behavioral needs) to an individual; however, as written the regulations create confusion about the initial assignment, do not address changes in actual practices for assignment post transition to the SIS – A and fails to provide the transparency that is essential to a basic system of checks and balances that provides protection for individuals who should be assigned to these higher levels of support need. While use of the word “or” (instead of and) in the level assignment criteria table for level 6 and 7 would appear to indicate there are 2 ways to be assigned that level – 1st having a score on the pertinent questions that is higher than the threshold score and 2nd submitting relevant category information for a review that establishes the basis for an assignment. However, this interpretation of the plain text would be wrong as the State has adopted nontransparent practices, that are being implemented now, that make the score on the pertinent questions irrelevant to the actual assignment and changes assignment levels regardless of the score based on a nontransparent review.
The absence of transparency permitted in assigning level 6 and 7 to individuals by these regulations, creates an unequal process that provides power and rights to the government with no equivalent power or rights for the individual to protect them from the government; resulting in unequal treatment, an unfair reduction of resources and the threat of more significant future harm:
Preemptively, because the State does not provide any opportunity for rejoinder and often sets up “straw man” interpretations of criticisms with simple responses:
Recommendations: 1st – revert to the transparent system with clear score indicators for level assignment and that used the score generated on the supplemental questions to assign individuals to level 6 or 7 whenever that score exceeded the published threshold; this would remove the algorithm, reduce the data double standard and protect the individual from review (except where fraud or deception are suspected) and create balance verses the process that unfairly benefits the government budget concerns at the expense of the individual – if the trained assessors scores have to be trusted unquestionably in all other areas why not in this area that is significantly more easily, accurately and objectively evaluated? 2nd – correct the structural/systematic imbalance created by giving the State the right to appeal/verify a SIS score on the supplemental questions with a corresponding right for individuals to appeal/verify a SIS score – why is it that what’s good for the goose is not for the gander? 3rd – require transparency in the assignment of level 6 and 7, this transparency should be required for evaluation of the algorithm and for the review process with identified criteria, standards and written justifications to promote transparency before and after verification reviews. Transparency for these processes would provide important checks on the government and provide records that can be used to stem abuse; as Supreme Court Justice Sandra Day O’Connor stated; “public records are one portal through which the people observe their government ensuring its accountability, integrity and equity while minimizing sovereign mischief and malfeasance”. While these records cannot be made public, transparent provision of records to the individual, guardians, authorized representatives, providers and support coordinators/case managers whom the individual has listed on their Consent to share confidential information form, could be given to these essential advocates and protectors of the individual who would be able to perform the critical function indicated by Justice O’Connor; why should these individuals be denied the tools necessary to perform their function to protect and serve the individuals involved? 4th – include protections and rights for individuals to assure transparency and provide checks and balances for any future changes in the process for making assignments to level 6 or 7. This will be the only way to correct the abuses that are occurring now and prevent even more egregious abuses from occurring in the future, without these protections in the regulations individuals will never be secure in their ability to assure a proper level assignment and hence their just and equitable share of resources as demonstrated by this quotation from a truly great Virginian Patrick Henry “the liberties of a people never were, nor ever will be, secure when the transactions of their rulers can be concealed from them”. Why not regulatorily require transparency in the level assignment process to secure the individuals rights?