At enCircle, we are joining with others who have already posted concerns. The crux of the problem is this: it is not possible for a provider to be in compliance with Department of Behavioral Health and Developmental Services (DBHDS) Office of Licensing (OL), Office of Human Rights (OHR)and HCBS regulations the way they are currently written and interpreted by the Department of Medical Assistance Services (DMAS). If we fail to comply with DBHDS regulations we will lose our license, and if we fail to comply with HCBS regulations we will lose our funding. Following HCBS regulations as interpreted also creates a legal risk for providers, opening us to charges of negligence from those we support and their families and guardians.

• DBHDS defines Group Home or Community Residential service as a congregate service providing 24-hour supervision in a community-based home having eight or fewer residents. Services include supervision, supports, counseling, and training in activities of daily living for individuals whose individualized services plan identifies the need for the specific types of services available in this setting. A person who requires the level of support required for these settings would not be eligible to receive the Community Living Waiver if they were able to live based on the HCBS standards outlined.
• DBHDS prioritizes safety. To meet OL/OHR requirements, providers don’t necessarily presume a person is automatically competent to assess and understand risk. The individual must be assessed, and measures taken to keep the person safe, first and foremost. Once safety is assured, the provider works toward educating the person so that the modifications/restrictions necessary to preserve the person’s safety are no longer needed.
• HCBS prioritizes dignity of risk, presuming each individual is competent to make all decisions for himself or herself. While we appreciate the thought behind this presumption of competence, it allows safety to be compromised. It means that providers can no longer consider historical data about someone when they start a new service. This puts providers in the ethical conflict of turning a blind eye to the information we have gathered as part of assessment for services or through direct observation. Ignoring information could put the individual and others at risk and opens providers to liability issues for ignoring safety risks and allowing them to recur. It would likely also lead to the provider being cited for neglect.

Private Providers have been placed in a very difficult position; it would be much better if all the regulatory bodies had communicated prior to rolling out HCBS services and citing providers. We request that implementation be paused immediately until OL, OHR and HCBS can construct regulations that support each party and support the legal and ethical responsibilities of private providers.