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Betting on the Market or the Election?

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Betting on the Market or the Election?

Barbara Merrill, Esq.

Over a year ago I sat in the office of a prominent disability rights advocate, an individual who is at the forefront of stronger integration policies and who has not historically demonstrated great concern for provider issues. After hearing my concerns about the down side risk of pushing policy forward too fast, she opined that if she were a provider today (mind you this was over a year ago), she’d wait to see who got elected president before making any irreversible decisions towards compliance  with the HCBS community settings rule.

I was more than a little surprised at her candor as it clearly didn’t advance her world view, but the point was valid – to a point.

This conversation occurred long before the parties nominated their candidates – back in the days when Bush, Rubio and Cruz still seemed viable, and few took Bernie seriously. Now that the general election is just weeks away we have a little more visibility.  

This is what we know now: Hillary’s pro-integration positions are very clear, she opposes block granting Medicaid, she’s  in favor providing financial incentives to states that increase integrated employment, and doesn’t support the use of sub-minimum wages. Donald Trump supports block granting Medicaid, and reducing burdensome “one size fits all” regulations impacting people with disabilities. With regard to employment policies and 14C, he states “people with disabilities have the right to be paid on parity with all others in the work force so they may earn a fair days wage for a fair day’s work. My administration will work with Congress to ensure that labor laws treat people with disabilities fairly.” (Both candidate disability positions can be accessed on the ANCOR Voter Resources Page here).

So this is my prediction: if Hillary is elected, perhaps the 2019 compliance deadline gets pushed, but the community settings rule stays, under Trump the rule goes largely unenforced, and possibly repealed. That’s how I read the tea leaves now, but how useful is it for long term planning?

I’m interviewed frequently by organizations doing comprehensive strategic planning – specifically to understand national trends and build market intelligence. To be honest, not one person, neither seasoned consultant nor member of a provider management team – has asked me if they should wait and see what the election may bring. That’s actually surprised me a bit, but perhaps it shouldn’t. Good strategic planning requires understanding the broad market forces – and those forces, long term, are stronger than whether CMS scraps the rule under a Trump administration or if it’s fast forwarded under Hillary’s team.

Don’t get me wrong. I don’t underestimate how effective an Administration can be – just look at the Obama Administration. The Department of Justice has taken Olmstead enforcement to an entirely new level, and the CMS HCBS Community Settings rule is already moving the needle toward greater integration. Presidential policies matter. But they are only one aspect of larger market forces.

Listen to the federal government and many state IDD administrators and Medicaid directors – they have heightened expectations for integrated delivery systems that improve outcomes and save taxpayer dollars, but less and less bandwidth to supervise the knitting together of complex service systems. More and more of them would prefer to turn the keys over to managed care companies, a decision made easier when the health plans strategically sponsor and support candidates and organizations. For years we were alternately cheered and horrified by the fact that the companies had no idea how to serve our population – but look at the recent hires – the Anthems, Cignas and Centenes are gobbling up some of the brightest in our field. They can and are acquiring subject matter expertise. The march to managed care won’t end soon, if at all.

Monitor the volume and velocity with which Olmstead suits are being brought by the Department of Justice and private litigants – even if a Trump Presidency pulls back on Olmstead enforcement, the private bar won’t. A case that particularly fascinates me was recently filed against Washington State by the local protection and advocacy/disability rights agency. It challenges rates paid to providers because they aren’t sufficient to attract workers to support people transitioning to the community. We cheer that case on, but some others – like the Minnesota case challenging the state’s reliance on waiver group homes - give us pause because they push farther than the experience-based standard in the HCBS rule. Those lawyers won’t be deterred by lack of federal enforcement, they’ll bring the cases themselves.

And then – although here the market appears somewhat contradictory – look at the higher expectations of young people and their families. Many of these families have experienced the benefits of integration and they aren’t looking for institutionalized settings, even if they are financed under the waiver and described as community settings. Even segregated sports are losing popularity – this generation wants and expect more. That clearly doesn’t apply to everyone – the recent rise in popularity for congregate secluded communities demonstrates that point, particularly for some people with autism and their families.

Finally, observe the quiet revolution being driven by technology. While the HCBS rule is certainly a game changer – technological advances will be even more transformational. From smart homes and deceptively simple apps that allow people to access their communities to the promise of robotics and self-driving cars, we can only guess at how profoundly these technologies will change the LTSS landscape. No amount of regulatory activity will hold these changes back.

These forces are strong – which is why over and over again the advice I give is simple: diversify funding sources and service models. Position your agency to be more flexible – consider divesting real estate, examine leasing options. Invest in technology to closely track your outcomes. But bottom line, you can hang on to congregate programs, and probably be just fine for more than a few years, but if your state gets sued, or slapped into managed care, you’d better watch your backside, because you’ll be competing with entrepreneurial providers offering exactly what many are already asking for. And they’ll have the apps to make it happen. Regardless of who’s in the White House.

Don’t forget to vote on November 8th.


Barbara Merrill is CEO of ANCOR. She can be reached at