DRC Law School -

The Disability Rights Center, Inc. (DRC) is the federally authorized and funded nonprofit organization serving as the Protection and Advocacy System (P&A) and the Client Assistance Program (CAP) for individuals with disabilities in Arkansas. DRC is authorized to protect human, civil and legal rights of all Arkansans with disabilities consistent with federal law.

Thank you for providing DRC the opportunity to comment on the above referenced. We also want to acknowledge the hard work many individuals put forth in preparing the “plan.” DRC will be publishing our comments for viewing on our DRC Law School website. [http://lawschool.arkdisabilityrights.org/].

I. The Supreme Court’s Decision in Olmstead

On June 22, 1999, the Supreme Court of the United States rendered one of the most important decisions in recent memory for people with disabilities--Olmstead v. L.C, 119 S. Ct. 2176 (1999).

L.C. and E.W. are two women (without guardians) who have mental illness and mental retardation and were voluntarily institutionalized in a Georgia state psychiatric hospital. L.C. and E.W. wanted to receive appropriate services in the community while living outside of the state hospital.

Their doctors agreed discharge to the community was appropriate. However, the state already maintained an exhaustive list of qualified persons waiting for one of the state's few community placements to became available. As a result, L.C. and E.W. remained unnecessarily institutionalized for a number of years as they waited on this list.

Consequently, L.C. filed suit against Tommy Olmstead, Commissioner of Georgia's Department of Human Resources, and E.W. intervened. That lawsuit alleged that Olmstead violated the ADA integration mandate by failing to provide L.C. and E.W. services in the most integrated setting appropriate to meet their needs, which in their case, was the community, not an institution.

After years of litigation, the Supreme Court granted certiorari to determine whether unnecessary institutionalization of individuals with disabilities is a form of discrimination prohibited by the Americans with Disabilities Act of 1990 (ADA). [42 U.S.C. §12313-12134].

In Olmstead, the Supreme Court held that, under Title II of the ADA, states are required to place persons with disabilities in community settings rather than in institutions when the treating professionals have determined that community placement is appropriate, placement in a community setting is not opposed by the individual and placement of the individual in the community can be accomplished with a reasonable modification in light of the available resources and needs of others with disabilities in the state.

In so holding, the Supreme Court affirmed “in substantial part” the prior decision of the Court of Appeals with regard to Olmstead. [The rationale relied upon by both courts were reasonable modifications regulations issued by the Attorney General].

These reasonable modification regulations rested on a pair of key determinations: (1) unjustified institutionalization of individuals severely limits their interaction in the community and acts as discrimination on the basis of disability, which is prohibited by Title II of the ADA, and (2) although states are obligated to avoid unjust isolation of individuals with disabilities, they will not be forced to make modifications that would fundamentally alter the nature of their services and programs.

While relying upon these determinations, the Supreme Court also took particular note of the portion of the ADA that identifies unjustified segregation of person with disabilities as a form of discrimination. 42 U.S.C. §§ 12101(a)(2), 12101(a)(5). These sections of the ADA, the court opined, reflect the principle that institutional placement of people who would benefit from the community setting is a dangerous perpetuation of long-held, unwanted stereotypes.

Although the Supreme Court affirmed the Court of Appeals “in substantial part,” it diverged from the latter with regard to the states’ responsibilities concerning reasonable modifications (in Part III-B). In that portion of its opinion, the Supreme Court held that a state may refrain from making reasonable modifications if it can show that the changes would result in a fundamental alteration of its services and programs.

The Supreme Court added that the Court of Appeals’ explanation of the fundamental alteration defense (weighing the expense of placing two people in a community based program versus the cost of the state’s entire mental health budget) would make the defense untenable.

As a result, the Supreme Court held that the fundamental alteration defense to a reasonable modification allows a state to show that immediate relief would be inequitable in light of its duty to treat a large and diverse population of people with disabilities.

The Supreme Court further held that a state would successfully raise a fundamental alteration defense to the reasonable modification standard by showing that it had developed a “comprehensive, effectively working plan” for placing people with disabilities in less restrictive settings, provided that the state maintained, “a waiting list that moved at a reasonable pace (emphasis added) not controlled by the state’s endeavors to keep its institutions fully populated.”

Having made this distinction, the Supreme Court remanded the case back to the Eleventh Circuit for further consideration of the appropriate relief given the number of applicable facilities in the State and its responsibility to administer services equitably.[i]

On January 28, 2000, a certified copy of the Judgment of United States Court of Appeals for the Eleventh Circuit was filed Remanding to the United States District Court for further proceedings in accordance with the opinion of the Supreme Court.

On July 11, 2000, in the courtroom of Judge Marvin H. Shoob, U.S. District Court for the Northern District of Georgia (Atlanta), the Olmstead case came to a formal close with the signing of a settlement agreement.

II. What the Olmstead decision means

The decision says a state may have a defense to lawsuits challenging the state's failure to serve individuals in the most integrated setting appropriate if it has a "comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings." The Court did not define a "comprehensive" plan. It seems appropriate that a "comprehensive" plan is one that addresses the placement needs of all individuals who are unnecessarily institutionalized or at risk of institutionalization. A state may have different plans to address different populations, as long as the needs of all individuals unnecessarily institutionalized are addressed. The Court does not define "effective." It seems logical however that an "effective" plan must have certain features:

1) The plan must be directly connected to the resources to fund its activities. A plan that cannot be implemented because of insufficient resources is no plan at all.

2) The plan must ensure the identification of individuals who are needlessly confined, what services they require, and the cost of those services. Without such information, the state has no means to even evaluate whether unnecessarily institutionalized persons are moved from the institution to the community.

3) The plan must include quality assurance and evaluation components, for example, ongoing monitoring and adjustment of community supports to ensure they are of high quality and meet individualized needs. Without a system to evaluate quality of community services individuals are at risk of returning to institutions unnecessarily.[ii]

III. DRC Comments to The Olmstead Plan in Arkansas

The Olmstead Plan in Arkansas dated 10-14-02 would not be considered a comprehensive, effectively working plan because it does not meet the Centers for Medicare and Medicaid Services (CMS) guidelines set forth in the CMS letter of January 14, 2000, that contained the enclosure, Developing Comprehensive, Effectively Working Plans, Initial Technical Assistance.[iii]

It is clear from the guidelines issued by CMS that the successful development and implementation of a comprehensive, effectively working plan relies upon honest, accurate assessment of services currently in existence which can serve as a framework for further service development. Unfortunately, The Olmstead Plan in Arkansas misstates, omits, provides misleading statements of fact and bases its mathematical calculations on “fuzzy math.”

Some examples of the shortcomings of the “plan” include, but are not limited to the following:

1. Page 3 of The Olmstead Plan in Arkansas states: “. . . Independent Choices gives those age 18 and over the opportunity to self-direct their care. In SFY02, 1,582 consumers managed over $5 million of care.”

DRC’s Comment: However, a news release issued on October 2, 2002 by the CMS Public Affairs Office of the United States Department of Health and Human Services had this to say about Independent Choices.

Arkansas launched its Independent Choices program in 1998, with about 800 beneficiaries now receiving cash allowances through the demonstration. Today's approval allows Arkansas to expand the demonstration to include all of the more than 1,600 eligible beneficiaries. (Emphasis added.)

2. Page 18 of The Olmstead Plan in Arkansas states: “Alternatives, another Medicaid Waiver program managed by DAAS, provides home and

community based services to adults with disabilities. It offers two consumer-directed services:

•attendant care that allows the client to recruit, hire, supervise and approve payment of the attendant.

•modifications to the home environment that increase independence or accessibility.”

DRC’s Comment: The Alternatives Provider Manual, Section 201.000, effective 5/1/01 provides: “Providers of Alternatives Waiver attendant care and environmental accessibility/ adaptation services must be certified by the Division of Aging & Adult Services (DAAS), as having met all HCFA approved provider criteria for the service(s) they wish to enroll to provide. . . It is the responsibility of the provider to maintain current Division of Aging and Adult Services (DAAS) certification to avoid loss of provider eligibility.”

The Provider Manual suggests that DAAS retains control of the decision making regarding attendants. This appears to conflict with the statements presented in “The Olmstead Plan in Arkansas.”

3. Page 9 of The Olmstead Plan in Arkansas states: “The GIST believes the Nurse Practice Act needs to be amended to better support the provision of long term care services in the home and community settings. For example, the Act could be amended to provide registered nurses protection from liability so they can be allowed to delegate the authority for administration of medications to trained paraprofessionals.”

DRC’s Comment: DRC agrees with the GIST in the example given, but disagrees with the method of accomplishing the goal. However, it is the regulations of the Arkansas State Board of Nursing which should be amended to allow registered nurses to delegate the authority for administration of medications to trained paraprofessionals and not the Nurse Practice Act. The Arkansas General Assembly should direct the Arkansas State Board of Nursing to amend its regulations, as it did with amendment of ACA Sec. 17-87-102, with the passage of Act 409 of its regular session of 1995. A new definition was added to the Nurse Practice Act by the General Assembly, “[t]he delegation of certain nursing practices to other personnel as set forth in regulations established by the board. . . “ ACA Sec. 17-87-102(2)(D)

The State Board of Nursing added a chapter to its Arkansas State Board Of Nursing Rules and Regulations, effective September 25, 1995, entitled, “Delegation.” [See Arkansas State Board Of Nursing Rules and Regulations, Chapter 5]. Two of the sections of the chapter deal with nursing duties which may be delegated to paraprofessionals under specific criteria. The regulations make it clear that ultimate responsibility for supervision and documentation of the delegated task(s) lies with the nurse. The chapter applies to licensed nurses, not only registered nurses.

1. Page A-18 of The Olmstead Plan in Arkansas (Medicaid Fact Sheet EPSDT) states: The Screening components listed in the Medicaid fact sheet for EPSDT do not mention a mental health screening. The state of Arkansas has chosen not to develop a specific screen to identify mental health problems (there are many states that do use a specific screen for pediatricians and other practitioners to use). The Early and Periodic Screening, Diagnosis and Treatment (EPSDT) mandate in Medicaid requires states to conduct regularly scheduled examinations (screens) of all Medicaid-eligible recipients under the age of 22 to identify physical and mental health problems. If a problem is detected and diagnosed, treatment must include any federally authorized Medicaid service, whether or not the service is covered under the state plan. If problems are suspected, an “interperiodic” screen is also required so the child need not wait for the next regularly scheduled checkup.

DRC’s Comments: When mental health services are not timely or are unavailable at the appropriate level or intensity for children and their families, the juvenile justice system often has little choice but to remove the child from his home.[iv] While some children's mental health services are available in certain areas of the state, the vast majority of counties have major gaps in such services for children and families. It is estimated there are 136,074 children and adolescents under the age of 18 in Arkansas who have a diagnosable mental health disorder (2000 U.S. Census data - 680,369 total under 18 population for Arkansas). During FY2000, Community Mental Health Centers served 20,119 children and adolescents under the age of 18 years. This low number is attributed to limited financial and human resources available for children's community-based mental health service delivery.[v]

It is important to assess Medicaid-eligible children appropriately for mental health as well as physical health problems.[vi] The Olmstead Plan in Arkansas indicates that the cost of treating children in institutional settings is going up each year, and yet EPSDT screens do not include a separate mental health screen. Wouldn’t early detection prevent having to place a child in an institution for treatment?

1. Page 21 & 22 of The Olmstead Plan in Arkansas states: “The Division of Mental Health Services has administrative responsibility for its facilities and the Arkansas State Hospital (ASH) is regulated by the Arkansas Department of Health. The Arkansas Health Center is inspected by the Office of Long Term Care. ASH is accredited by the Joint Commission on the Accreditation of Health Care Organizations (JCAHCO). The fifteen Community Mental Health Centers and three clinics must be accredited by either Council of Accreditation of Rehabilitation Facilities (CARF) or JCAHCO to maintain certification by the Division. The Division monitors compliance with deficiencies.” (Emphasis added). Not exactly.

DRC’s Comment: DMHS has turned over its responsibility to “monitor” Community Mental Health Centers (CMHCs) to either CARF or JCAHO. The Division does not “monitor” compliance with deficiencies. It has turned over responsibility to the accreditation agencies to act for the DMHS. This process is called “deeming.” The "deemed status" means essentially that if a CMHC receives accreditation from a national organization like JCAHO or CARF, nothing else is required in order to obtain certification from the DMHS. The current process (JCAHO or CARF accreditation) has little functional connection with the DMHS. People from outside the state come in, conduct a survey, then leave. At some point after this, the DMHS receives information on paper.[vii]

2. Page 3 of The Olmstead Plan in Arkansas states: “The number of individuals in HDCs has declined over the last 5 years, from 1,244 in 1998 to 1,161 in 2002 (June 30 midnight census). . . new ways to deliver care emerged through waiver services. Arkansans have responded to these services dramatically. While the data demonstrates the use of nursing homes and HDCs has declined, the use of home and community-based waivers has expanded significantly. For the DDS waiver, there were 3,423 unduplicated beneficiaries with an average cost of $18,924 per person.”[viii]

DRC’s Comment: Attachments to The Olmstead Plan in Arkansas, show Medicaid spending on the community services such as personal care, case management, transportation, mental health, and psychology services decreased consistently over a period of five years, some as much as half and spending for long term care facilities increased by almost 20-25%.

Arkansas is one of eleven states that relies on services provided in public facilities and has been slower to place people with disabilities in the community. More importantly, 50% or more of those individuals with MR/DD are typically committed to institutions for 16 or more people.[ix] Nine states and jurisdictions have closed their public institutions. These states are considered successful models of deinstitutionalization and the pioneering examples of states that have created community-based delivery systems for their developmentally disabled populations.

In a survey published by ADAPT 2002/2003, Arkansas was ranked as one of the worst states in the country in providing options for people with disabilities and older Americans to live and receive support services in the community. ADAPT used three sources of information to rank the states:

Additionally, On June 30, 2001, there was a national ICF-MR utilization rate of 40.0 ICF-MR residents per 100,000 persons in the United States. The highest individual state ICF-MR utilization rates were 137.6 in the District of Columbia and 124.4 in Louisiana. The highest utilization of large ICFs-MR were in Arkansas (53.9) (Emphasis added), Illinois (55.2), Louisiana (60.2), Mississippi (69.6), and Oklahoma (51.1). Since 1960, 38 states closed one or more facilities. Thirteen states with a total of 39 large state MR/DD residential facilities have neither closed a facility since 1960 nor have plans to do so. Almost two-thirds (25) of the facilities operated in these thirteen states are located in Arkansas (Emphasis added), Louisiana, Mississippi, and South Carolina.[x]

Arkansas claims to have made great strides in decreasing the numbers of individuals institutionalized in the state. But by its own accounting, expenditures do not justify this claim, nor do national studies.

1. Page 14 of The Olmstead Plan in Arkansas states: “DMHS is requesting $5.8 million in additional General Revenue funds. The plan would put the CMHCs at risk or responsible for paying for the inpatient care of anyone whose income is below 200% of poverty.[xi] This system strongly encourages CMHCs to carefully evaluate the actual need for inpatient care, to provide assertive continuing care to reduce the risk of decompensation, to provide alternatives to hospitalization, and to perform effective discharge planning. With a bias in place for short-term acute care, the CMHCs could then use the additional funds plus any savings for crisis units, direct crisis intervention, crisis stabilization, and assertive community treatment.”

DRC’s Comment: The DMHS has had level funding for the last 3 bienniums. In SFY 2002, total general revenue funding for the Division of Mental Health Services was $53,174,359. In addition, in SFY 2002, DMHS took a 6% general revenue cut due to the shortfall in State general revenue in the amount of $3,190,462.[xii] Even if the legislature appropriates the $5.8 million DMHS is requesting, the actual effect will be an increase of only $2,609,538 in new revenue.

III. Conclusion

The Olmstead Plan in Arkansas has been far too long in the making. The result of the current effort is a plan which once again shirks the “enormity of the task.”[xiii] This is not to suggest that this plan does not provide some thoughtful consideration of the needs of Arkansans with particular disabilities.

It is respectfully suggested that the GIST and DHS write a plan which conforms with the guidelines issued by CMS (See End Note 3 below) and which includes all disability populations, including those who are HIV positive, those living in residential care facilities,[xiv] children with disabilities in the custody of the state, individuals at risk of entering a segregated setting and those residing in congregate settings for persons with developmental disabilities or mental illness.

END NOTES:

[i] Ginsburg J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III-A, in which Stevens, O'Connor, Souter, and Breyer, JJ, joined, and an opinion with respect to Part III-B, in which O'Connor, Souter, and Breyer, JJ., joined. Stevens, J., filed an opinion concurring in part and concurring in the judgment. Kennedy, J., filed an opinion concurring in the judgment, in which Breyer, J., joined as to Part I. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia, J., joined.

[ii] Text contained in this section excerpted from the website of the National Association of Protection and Advocacy Systems (NAPAS).

[iii] Developing Comprehensive, Effectively Working Plans Initial Technical Assistance Recommendation, provides:

Comprehensive, Effectively Working Plans

Principle: Develop and implement a comprehensive, effectively working plan (or plans) for providing services to eligible individuals with disabilities in more integrated, community-based settings. When effectively carrying out this principle:

§ The State develops a plan or plans to ensure that people with disabilities are served in the most integrated setting appropriate. It considers the extent to which there are programs that can serve as a framework for the development of an effectively working plan. It also considers the level of awareness and agreement among stakeholders and decision-makers regarding the elements needed to create an effective system, and how this foundation can be strengthened.

§ The plan ensures the transition of qualified individuals into community-based settings at a reasonable pace. The State identifies improvements that could be made.

§ The plan ensures that individuals with disabilities benefit from assessments to determine how community living might be possible (without limiting consideration to what is currently available in the community). In this process, individuals are provided the opportunity for informed choice.

§ The plan evaluates the adequacy with which the State is conducting thorough, objective and periodic reviews of all individuals with disabilities in institutional settings (such as State institutions, ICFs/MR, nursing facilities, psychiatric hospitals, and residential service facilities for children) to determine the extent to which they can and should receive services in a more integrated setting.

§ The plan establishes similar procedures to avoid unjustifiable institutionalization in the first place.

Plan Development and Implementation Process

Principle: Provide an opportunity for interested persons, including individuals with disabilities and their representatives, to be integral participants in plan development and follow-up. When effectively carrying out this principle:

§ The State involves people with disabilities (and their representatives, where appropriate) in the plan development and implementation process. It considers what methods could be employed to ensure constructive, ongoing involvement and dialogue.

§ The State assesses what partnerships are needed to ensure that any plan is comprehensive and works effectively.

Assessments on Behalf of Potentially Eligible Populations

Principle: Take steps to prevent or correct current and future unjustified institutionalization of individuals with disabilities. When effectively carrying out this principle:

§ The State has a reliable sense of how many individuals with disabilities are currently institutionalized and are eligible for services in community-based settings. The plan considers what information and data collection systems exist to enable the State to make this determination. Where appropriate, the State considers improvements to data collection systems to enable it to plan adequately to meet needs.

§ The State evaluates whether existing assessment procedures are adequate to identify institutionalized individuals with disabilities who could benefit from services in a more integrated setting.

§ The State also evaluates whether existing assessment procedures are adequate to identify individuals in the community who are at risk of placement in an unnecessarily restrictive setting.

§ The plan ensures that the State can act in a timely and effective manner in response to the findings of any assessment process.

Availability of Community-Integrated Services

Principle: Ensure the Availability of Community-Integrated Services. When effectively carrying out this principle:

§ The plan identifies what community-based services are available in the State. It assesses the extent to which these programs are able to serve people in the most integrated setting appropriate (as described in the ADA). The State identifies what improvements could be accomplished, including in information systems, to make this an even better system, and how the system might be made comprehensive.

§ The plan evaluates whether the identified supports and services meet the needs of persons who are likely to require assistance in order to live in the community. It identifies what changes could be made to improve the availability, quality and adequacy of the supports.

§ The State evaluates whether its system adequately plans for making supports and services available to assist individuals who reside in their own homes with the presence of other family members. It also considers whether its plan is adequate to address the needs of those without family members or other informal caregivers.

§ The State examines how the identified supports and services integrate the individual into the community.

§ The State reviews what funding sources are available (both Medicaid and other funding sources) to increase the availability of community-based services. It also considers what efforts are under way to coordinate access to these services. Planners assess the extent to which these funding sources can be organized into a coherent system of long term care which affords people with disabilities reasonable, timely access to community-based services.

§ Planners also assess how well the current service system works for different groups (e.g. elderly people with disabilities, people with physical disabilities, developmental disabilities, mental illness, HIV-AIDS, etc.). The assessment includes a review of changes that might be desirable to make services a reality in the most integrated setting appropriate for all populations.

§ The plan examines the operation of waiting lists, if any. It examines what might be done to ensure that people are able to come off waiting lists and receive needed community services at a reasonable pace.

Informed Choice

Principle: Afford individuals with disabilities and their families the opportunity to make informed choices regarding how their needs can best be met in community or institutional settings. When effectively carrying out this principle:

§ The plan ensures that individuals who may be eligible to receive services in more integrated community-based settings (and their representatives, where appropriate) are given the opportunity to make informed choices regarding whether – and how- their needs can best be met.

§ Planners address what information, education, and referral systems would be useful to ensure that people with disabilities receive the information necessary to make informed choices.

Implications for State and Community Infrastructure

Principle: Take steps to ensure that quality assurance, quality improvement and sound management support implementation of the plan. When effectively carrying out this principle:

§ Planners evaluate how quality assurance and quality improvement can be conducted effectively as more people with disabilities live in community settings.

§ The State also examines how it can best manage the overall system of health and long term care so that placement in the most integrated setting appropriate becomes the norm. It considers what planning, contracting and management infrastructure might be necessary to achieve this result at the State and the community level.

[iv] See, "Five Year Analysis of Arkansas Juvenile Court Statistics FY 1995-1996 - FY 1999-2000," Arkansas Administrative Office of the Courts, Prepared by Kellye Mashburn, Edited by Connie Tanner (Family in Need of Services (FINS) filings have increased from 4,708 filings in FY 1996-97 to 6,617 in FY 1999-2000 while Juvenile Delinquency filings for Arkansas peaked in FY 1996-97 at 12, 410 and have decreased in subsequent fiscal years to 11,011 (FY1999-2000).

[v] Information taken from the Position Paper prepared by Mental Health Council of Arkansas, September 2001.

[vi] Issue Paper #3 “An Evaluation of State EPSDT Screening Tools,” A Policy Analysis Series from the Bazelon Center for Mental Health Law, Washington D.C. (The Bazelon Center for Mental Health Law studied instruments in use or under development to identify children’s mental health and addiction treatment needs in 15 states and has published its findings under its series of issue papers, specifically “Issue Paper #3, An Evaluation of State EPSDT Screening Tools”).

[vii] Standards Review Committee Minutes, November 16, 1999.

[viii] Cost Issues in Medicaid: EPSDT v. Children’s Waivers, prepared for The National Association of Protection and Advocacy Systems by Sarah Jane Somers, The National Health Law Program.

Section 1915(c) waivers must be cost neutral. To ensure this cost neutrality, states are required to satisfy two standards. First, before a waiver is granted, a state must make assurances to the Secretary of the Department of Health and Human Services that the average per capita fiscal year expenditures under the waiver will not exceed one hundred percent of the average per capita fiscal year expenses that the state reasonably estimates it would have made in the absence of the waiver. [42 U.S.C. Secs. 1396n(c)(2)(D), 42 C.F.R. sec. 441.302(e)].

Specifically, the Centers for Medicare and Medicaid Services requires each state to estimate the average annual per capita cost of home and community-based services for each waiver recipient and the average annual cost of all other Medicaid services, such as acute care, that it provides to those waiver recipients, and to add these two amounts. Then, CMS requires states to estimate the average annual per capita cost for institutional care each waiver recipient would incur if the waiver were not granted and add it to the estimated annual average per capita Medicaid costs for all other services those recipients would receive in the absence of the waiver. The first sum must be less than or equal to the second sum. [CMS, STATE MEDICAID MANUAL, Instruction for Completing Form 372(S) sec 2700.6(N)(4)].

Second, the state must assure that once the waiver is operating, the actual total expenditures for home and community-based and other services it provides under the waiver will not exceed 100 percent of the amount it would have incurred for services for the same individuals in nursing facilities, hospitals, or intermediate care facilities for the mentally retarded. [42 C.F.R. sec. 441.302(f)].

The statute allows a state to exclude an individual from the waiver if there is not a “reasonable expectation” that the cost of medical services for the person under the waiver will be less than or equal to the cost of services for that persons without the waiver. [42 U.S.C. sec. 1396(n)(c)(4)(A). Moreover, CMS has instructed states that “[u]nder the waiver, you may … exclude those individuals for whom there is a reasonable expectation that home and community-based services would be more expensive that the Medicaid services that the individual would otherwise receive in an institution.” CENTERS FOR MEDICARE AND MEDICAID SERVICES, STATE MEDICAID MANUAL sec. 4440 (Jan. 1997).]

Some states implement this cost neutrality provision by requiring home and community-based waiver individual budgets to meet a specific cost cap. North Carolina, for example, uses this approach; individual 1915(c) waiver recipients’ costs may not exceed the average cost of care in an intermediate care facility for the mentally retarded - $86,058 per year as of April 1, 2001. [Letter to Area Directors, from Paul R. Peruzzi, Director, Division of Medical Assistance (Apr. 25, 2001)].

This capped amount is intended to cover all waiver-funded services as well as regular Medicaid-funded services that the individual would receive in such a facility. Services that are not provided under a facility’s per diem rate, such as drugs, acute medical care, or physician visits, are not included in the individual budget [Id.]. Individuals who receive services under this waiver, including children, must go through an annual budget process. Each year a case worker and the waiver recipient or a family member use state-established prices to compile a list of the necessary services and the cost of each. Theoretically, if the projected needs exceed the budget amount, the individual may lost his or her waiver slot. In practice, however, what frequently happens is that some services are simply eliminated so that the needs will fit within the budget.

[ix] Deinstitutionalization of Persons with Developmental Disabilities: A Technical Assistance Report for Legislators, by DeWayne Davis, Wendy Fox-Grage, and Shelly Gehshn, Item No. 6683.

[x] Residential Services for Persons with Developmental Disabilities: Status and Trends Through 2001, dated June 2002. Report issued by the Research and Training Center on Community Living Institute on Community Integration/UCEED.

Information taken from the Position Paper prepared by Mental Health Council of Arkansas, September 2001.

[vii] Standards Review Committee Minutes, November 16, 1999.

[viii] Cost Issues in Medicaid: EPSDT v. Children’s Waivers, prepared for The National Association of Protection and Advocacy Systems by Sarah Jane Somers, The National Health Law Program.

Press Release

I. The Supreme Court’s Decision in Olmstead

II. What the Olmstead decision means

III. DRC Comments to The Olmstead Plan in Arkansas

III. Conclusion