OPTIONS, ISSUES AND THE INTERSECTION WITH OLMSTEAD Medicaid and Community Services

National Context Nationally there is a movement from large, congregate settings to smaller, community settings Advocates have voiced strong preferences for community-based services There is a considerable drive at the federal level to move to non-congregate, community settings  Centers for Medicare and Medicaid Services (CMS) initiatives  Money Follows the Person  Balancing Incentives Payment Program  1915(c),(j),(k),(i)  Department of Justice (DOJ) —ADA/Olmstead enforcement R. Cooper, NASDDDS 10/11

DOJ Enforcement DOJ has heightened enforcement of the ADA and Olmstead DOJ has expanded beyond the 1980 Civil Rights of Institutionalized Persons Act (CRIPA) and institutions (although plenty going on there too) DOJ is taking a close look at community services for individuals with disabilities and mental health needs Read Tom Perez’s testimony: Olmstead Guidance: R. Cooper, NASDDDS 10/11

What Does the Olmstead Decision Say? R. Cooper, NASDDDS 10/11 The Olmstead decision upheld :  The “the most integrated setting” is one that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible and,  that public entities are required to provide community-based services to persons with disabilities when (a)such services are appropriate; (b) the affected persons do not oppose community-based treatment; and (c) community-based services can be reasonably accommodated, taking into account the resources available to the entity and the needs of others who are receiving disability services from the entity.

Integrated Settings R. Cooper, NASDDDS 10/11 Integrated settings are those that provide individuals with disabilities opportunities to live, work, and receive services in the greater community, like individuals without disabilities. Integrated settings are located in mainstream society; offer access to community activities and opportunities at times, frequencies and with persons of an individual’s choosing; afford individuals choice in their daily life activities; and, provide individuals with disabilities the opportunity to interact with non-disabled persons to the fullest extent possible.

Segregated Settings R. Cooper, NASDDDS 10/11 Segregated settings include, but are not limited to: (1) congregate settings populated exclusively or primarily with individuals with disabilities; (2) congregate settings characterized by regimentation in daily activities, lack of privacy or autonomy, policies limiting visitors, or limits on individuals’ ability to engage freely in community activities and to manage their own activities of daily living; or (3) settings that provide for daytime activities primarily with other individuals with disabilities.

DOJ Enforcement Actions DOJ Findings Letter to North Carolina The United States issued a Findings Letter in July 2011 concluding that North Carolina is violating the ADA's integration mandate in its provision of mental health services. The state's administration of its mental health system causes the unnecessary institutionalization of individuals with mental illness in segregated facilities known as adult care homes. The Department recommended that the State implement certain remedial measures, including the development of scattered site supported housing and the provision of adequate, community-based support services for people with mental illness who are unnecessarily institutionalized, or at risk of unnecessary institutionalization, in adult care homes. R. Cooper, NASDDDS 10/11

DOJ Findings New York State officials and agencies have discriminated against thousands of people with mental illness by segregating them in large, institutional adult homes and denies them the opportunity to receive services in the most integrated setting appropriate to their needs. Court order required the State to ensure that (a) within four years, all current and future adult home residents with mental illness are afforded the opportunity to receive services in a community-based housing program, if qualified, and (b) no individual with mental illness who is qualified for the State's community-based housing program is offered placement in an adult home unless, after being fully informed, he or she denies the opportunity to receive services in the community-based housing program. R. Cooper, NASDDDS 10/11

And CMS is looking too… A definition of what constitutes community for Medicaid funded HCBS services proposed in 1915(i) State plan HCBS  Resident ability to control access to private personal quarters,  Option to furnish and decorate that area;  If the personal quarters are not a private room, then unscheduled access to private areas for telephone and visitors,  Option to choose with whom they share their personal living space;  Unscheduled access to food and food preparation facilities;  Assistance coordinating and arranging for the resident’s choice of community pursuits outside the residence; and the right to assume risk. R. Cooper, NASDDDS 10/11

CMS decision: Missouri “…residential units clustered on the grounds of a large State operated institution…precludes CMS approval.” This is the first time CMS has weighed in on the location, noting that the setting was “segregated” and had “restricted access to the larger community. R. Cooper, NASDDDS 10/11

Which bring us to…. 1915(k) Community First Choice option (proposed rule): “….home and community settings may not include a building that is also a publicly or privately operated facility which provide inpatient institutional treatment or custodial care; or in a building on the grounds of, or immediately adjacent to, a public institution or disability-specific housing complex, designed expressly around an individual’s diagnosis that is geographically segregated from the larger community, as determined by the Secretary. To maintain consistency across the Medicaid program, we anticipate adopting this same clarification for services provided under section 1915(c) of the Act and other authorities permitting coverage of home and community-based services under Medicaid.” R. Cooper, NASDDDS 10/11

And there is the Institute for Mental Disease (IMD) issue as well… R. Cooper, NASDDDS 10/11 CMS regulations do not allow for Medicaid payment for services in settings greater than 16 beds where:  the facility is licensed as a psychiatric facility,  the facility is accredited as a psychiatric facility,  the facility is under the jurisdiction of the state's mental health authority, the facility specializes in providing psychiatric- psychological care and treatment,  or more than 50 percent of all the patients-residents in the facility require care because of mental diseases, including settings licensed as nursing homes.

All of which is rather confusing…. R. Cooper, NASDDDS 10/11 CMS regulations allow for the funding of institutions such as nursing facilities and intermediate care facilities for individual with developmental disabilities… CMS does NOT fund IMDs, AND, DOJ says that all of these settings violate Olmstead—and most integrated setting requirements… So—who wins this one???

Who Holds the Trump? R. Cooper, NASDDDS 10/11 DOJ—the Americans with Disability Act and the Olmstead decisions are federal law CMS-provides a funding stream-just as they do for community settings DOJ does not attend to the legality or source of funding—the setting could be funded with state dollars or federal funds At issue is the “most integrated setting”, not whether the setting is “allowable” under certain funding streams

Maine has a “double-whammy” R. Cooper, NASDDDS 10/11 CMS indicated that some of the settings currently funded under Medicaid are no longer permissible…and.. Even if CMS would agree to the settings, Maine would still have a potentially real issue with compliance with Olmstead…so, What are the options?

And many options for residential supports R. Cooper, NASDDDS 10/11 In-home supports Family support Supported living Permanent supported housing Adult and child foster care Shared living Independent living Small group arrangements Assisted living….and whatever else makes sense and meets community standard