-----Original Message-----
From: [log in to unmask]
[mailto:[log in to unmask]]On Behalf Of Stephanie
Sent: Saturday, January 15, 2000 10:17 PM
To: [log in to unmask]
Subject: FW: HCFA letter on Olmstead!
Here, finally, is the HCFA letter to the state Medicaid Directors
regarding implementing Olmstead.
DEPARTMENT OF HEALTH & HUMAN SERVICES
200 Independence Avenue, SW
Washington, D.C. 20201
January 14, 2000
Dear State Medicaid Director:
The recent Supreme Court decision in Olmstead v. L. C., 119 S.Ct. 2176
(1999), provides an important legal framework for our mutual efforts to
enable individuals with disabilities to live in the most integrated
setting appropriate to their needs. The Court's decision clearly
challenges us to develop more opportunities for individuals with
disabilities through more accessible systems of cost-effective
community-based services.
This decision confirms what this Administration already believes: that
no one should have to live in an institution or a nursing home if they
can live in the community with the right support. Our goal is to
integrate people with disabilities into the social mainstream, promote
equality of opportunity and maximize individual choice.
The Department of Health and Human Services (DHHS) is committed to
working with all affected parties to craft comprehensive, fiscally
responsible solutions that comply with the Americans with Disabilities
Act of 1990 (ADA). Although the ADA applies to all State programs,
Medicaid programs play a critical role in making community services
available. As a consequence, State Medicaid Directors play an important
role in helping their States comply with the ADA. This letter conveys
our initial approach to Olmstead and outlines a framework for us to
respond to the challenge.
The Olmstead Decision
The Olmstead case was brought by two Georgia women whose disabilities
include mental retardation and mental illness. At the time the suit was
filed, both plaintiffs lived in State-run institutions, despite the fact
that their treatment professionals had determined that they could be
appropriately served in a community setting. The plaintiffs asserted
that continued institutionalization was a violation of their right under
the ADA to live in the most integrated setting appropriate. The
Olmstead decision interpreted Title II of the ADA and its implementing
regulation, which oblige States to administer their services, programs,
and activities "in the most integrated setting appropriate to the needs
of qualified individuals with disabilities." (28 CFR 35.130(d)). In
doing so, the Supreme Court answered the fundamental question of whether
it is discrimination to deny people with disabilities services in the
most integrated setting appropriate. The Court stated directly that
"Unjustified isolation . . . is properly regarded as discrimination
based on disability." It observed that (a) "institutional placement of
persons who can handle and benefit from community settings perpetuates
unwarranted assumptions that persons so isolated are incapable or
unworthy of participating in community life," and (b) "confinement in an
institution severely diminishes the everyday life activities of
individuals, including family relations, social contacts, work options,
economic independence, educational advancement, and cultural
enrichment."
Under the Court's decision, States are required to provide
community-based services for persons with disabilities who would
otherwise be entitled to institutional services when: (a) the State's
treatment professionals reasonably determine that such placement is
appropriate; (b) the affected persons do not oppose such treatment; and
(c) the placement can be reasonably accommodated, taking into account
the resources available to the State and the needs of others who are
receiving State-supported disability services. The Court cautioned
however, that nothing in the ADA condones termination of institutional
settings for persons unable to handle or benefit
from community settings. Moreover, the State's responsibility, once it
provides community-based treatment to qualified persons with
disabilities, is not unlimited.
Under the ADA, States are obliged to "make reasonable modifications in
policies, practices, or procedures when the modifications are necessary
to avoid discrimination on the basis of disability, unless the public
entity can demonstrate that making the modifications would fundamentally
alter the nature of the service, program or activity." (28 CFR
35.130(b)(7)). The Supreme Court indicated that the test as to whether
a modification entails "fundamental alteration" of a program takes into
account three factors: the cost of providing services to the individual
in the most integrated setting appropriate; the resources available to
the State; and how the provision of services affects the ability of the
State to meet the needs of others with disabilities. Significantly, the
Court suggests that a State could establish compliance with title II of
the ADA if it demonstrates that it has:
v a comprehensive, effectively working plan for placing qualified
persons with disabilities in less restrictive settings, and
v a waiting list that moves at a reasonable pace not controlled by the
State's endeavors to keep its institutions fully populated.
Olmstead and the Medicaid Program
Olmstead challenges States to prevent and correct inappropriate
institutionalization and to review intake and admissions processes to
assure that persons with disabilities are served in the most integrated
setting appropriate. Medicaid can be an important resource to assist
States in meeting these goals. We want to work closely with States to
make effective use of Medicaid support in your planning and
implementation of Olmstead. As an example of the interface between
Olmstead's explanation of the State's ADA obligation and your Medicaid
program we would point to the State's responsibility, under Medicaid, to
periodically review the services of all residents in Medicaid-funded
institutional settings. Those reviews may provide a useful component of
the State's planning for a comprehensive response to Olmstead. States
must also be responsive to institutionalized individuals who request
sabilities will expand and improve on these ideas. Although these plans
encompass more than just the Medicaid program, we realize the important
role played by State Medicaid Directors in this area. As just one
example, Federal financial participation will be available at the
administrative rate to design and administer methods to meet these
requirements, subject to the normal condition that the changes must be
necessary for the proper and efficient administration of the State's
Medicaid program. Because of your significant role, we have taken this
opportunity to raise these issues with you.
The principles and practices contained in the accompanying technical
assistance enclosure also serve as an important foundation for the DHHS
Office for Civil Rights' (OCR) activities in this area. As you know,
OCR has responsibility for investigating discrimination complaints
involving the most integrated setting issue. OCR also has authority to
conduct compliance
reviews of State programs and has already contacted a number of States
to discuss complaints. OCR strongly desires to resolve these complaints
through collaboration and cooperation with all interested parties.
Next Steps for the Department of Health and Human Services
Consultation: We have begun consultation with States (including State
Medicaid Directors and members of the long term care technical advisory
group, who share responsibility for Medicaid) and with people with
disabilities. We look forward to building on this start. Many States
have made great strides toward enabling individuals with disabilities to
live in their communities. There is much that we can learn from these
States. We are interested in your ideas regarding the methods by which
we might accomplish such continuing consultation effectively and
economically.
Addressing Issues and Questions Regarding Olmstead and Medicaid: As we
move forward, we recognize that States may have specific issues and
questions about the interaction between the ADA and the Medicaid to
develop further guidance and technical assistance. We recommend that
States do the following:
v Develop a comprehensive, effectively working plan (or plans) to
strengthen community service systems and serve people with disabilities
in the most integrated setting appropriate to their needs;
v Actively involve people with disabilities, and where appropriate,
their family members or representatives, in design, development and
implementation;
v Use the attached technical assistance material as one of the guides
in the planning process;
v Inform us of questions that need resolution and of ideas regarding
technical assistance that would be helpful.
We look forward to working with you to improve the nation's community
services system.
Sincerely,
/s/ /s/
Timothy M. Westmoreland Thomas Perez
Director Director
Center for Medicaid and State Operations Office for Civil Rights
Health Care Financing Administration
Enclosure
cc:
All HCFA Regional Administrators
All HCFA Associate Regional Administrators
Division of Medicaid and State Operations
American Public Human Services Association
National Association of State Alcohol and Drug Abuse Directors, Inc.
National Association of State Directors of Developmental Disabilities
Services
National Association for State Mental Health Program Directors
National Association of State Units on Aging
National Conference of State Legislatures
National Governors' Association
Enclosure
Developing Comprehensive, Effectively Working Plans
Initial Technical Assistance Recommendations
In ruling on the case of Olmstead v L.C., the Supreme Court affirmed the
right of individuals with disabilities to receive public benefits and
services in the most integrated setting appropriate to their needs. The
Supreme Court indicated that a State can demonstrate compliance with its
ADA obligations by showing that it has a comprehensive, effectively
working plan for placing qualified persons with disabilities in less
restrictive settings, and a waiting list that moves at a reasonable pace
not controlled by the State's endeavors to keep its institutions fully
populated.
We strongly urge States to increase access to community-based services
for individuals with disabilities by developing comprehensive,
effectively working plans for ensuring compliance with the ADA. There
is no single model plan appropriate for all States and situations. In
developing their plans, States must take into account their particular
circumstances. However, we believe there are some factors that are
critically important for States that seek to develop comprehensive,
effectively working plans. Our intent in this enclosure is to identify
some of the key principles, including the involvement of people with
disabilities throughout the planning and implementation process. These
principles also will be used by the Office for Civil Rights as it
investigates complaints and conducts compliance reviews involving "most
integrated setting" issues. We strongly recommend that States factor in
these principles and practices as they develop plans tailored to their
needs.
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:
ú 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.
ú The plan ensures the transition of qualified individuals into
community-based settings at a reasonable pace. The State identifies
improvements that could be made.
ú 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.
ú 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.
ú 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:
ú 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, on-going involvement and dialogue.
ú 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:
ú 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 her
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 reasonable, timely access to
community-based services.
ú 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.
ú 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:
ú 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.
ú 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:
ú Planners evaluate how quality assurance and quality improvement can be
conducted effectively as more people with disabilities live in community
settings.
ú 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.
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