STATES RESPONSES TO THE OLMSTEAD DECISION

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STATES RESPONSES TO THE OLMSTEAD DECISION

• Donna Folkemer
• Forum for State Health Policy Leadership
• National Conference of State Legislatures
• September 24, 2001

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• What is Olmstead?
• What are states doing?
• Key issues being considered
• State examples

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What is Olmstead?

• First application of ADA to cases involving
  persons in long term care and for whom an
  institution is medically unnecessary

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Major findings

• ADA prohibits unnecessary institutionalization of
  individuals.
• Where such discrimination exists, state may be
  required to provide community services to persons
  for whom institutionalization is inappropriate,
  services represent reasonable accommodation, and
  provision does not require fundamental alteration
  of programs

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What does the case say about Medicaid?

• Barely mentions Medicaid
• Big expenditures in Medicaid, so states likely to
  focus on Medicaid policy and programs.
• Such focus not required by Olmstead

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What does this mean?

• Nature of remedy not clear
• Perhaps Brown v. Board of Education for
  institutionalized persons with disabilities.(Sara
  Rosenbaum, 2000)
• Perhaps all deliberate speed standard

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ADA Obligations

• If the state were to demonstrate that it had a
  comprehensive, effectively working plan for
  placing qualified personsin less restrictive
  settings, and a waiting list that moved at a
  reasonable pace not controlled by the States
  endeavors to keep its institutions fully
  populated, the reasonable modifications standard
  would be met.

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Balancing Needs

• Court recognized three classes of persons in need
• Persons in institutions for whom community care
  is appropriate
• Persons in institutions for whom institutional
  care is appropriate
• Persons in the community who need community care

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What is balancing competing interests?

• No relief for inappropriately institutionalized
  does not meet ADA requirements
• Absence of movement at reasonable pace does not
  meet ADA requirements.

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Framework for State Activities

• Move forward development of appropriate
  community-based care
• Medicaid is key in states

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Whats going on in states?

• Forty states plus D.C. have task forces or
  commissions developing plans
• Fifteen states have issued documents
• Eleven to twelve in the works between 2001 and
  2003

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Whats going on in states?

• Commissions operating under diverse authorities,
  but almost all are
• broad-based in membership
• led by health, human services, or Medicaid agency
• focusing on all disability groups (frail elderly,
  persons with physical disabilities, persons with
  mental disabilities, persons with developmental
  disabilities

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What has been federal role?

• OCR Olmstead workgroup
• HCFA guidance
• 50 million in Real Choice Systems Change Grants

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Issues in Plans

• Medicaid as underpinning
• Issues go beyond Medicaid
• Assessment strategies
• Service infrastructure, especially with staff
  shortages
• Housing and transportation
• MONEY

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State ApproachesOhio

• Ohio Access for People with Disabilities (02/01)
• Six year strategy
• Guiding principles increase community capacity,
  prioritize resources, assure quality and
  accountability
• Process coordinated by Office of Budget and
  Management

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More on Ohio

• Match capacity with demand--expenditures
  misaligned. Governor proposes 145 for community
  services.
• Isolated program initiatives will not be
  effective. Structural reform needed.
• Overcome federal policy constraints
• Address workforce shortage

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North Carolina

• Plan issued by DHHS (Interim 12/00)
• Build on current move to community care
• Outreach
• Assessment
• Service Plans
• Waiting lists
• Existing community-based care
• Needed community-based care
• Monitoring and quality assurance

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North Carolina

• this plan will never truly be final, because it
  will remain subject to review and revision based
  on progress in implementation, advances in
  treatment environments and techniques, and
  societal developments. In addition, practical
  considerations such as the economy and other
  demands at both the national and state levels
  will affect the states ability to respond to its
  requirements in all service areas. These factors
  may be positive or negative, but they must be
  included in a realistic operational system.

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Missouri

• Four legislators part of 15 member Home and
  Community-Based Services and Consumer Directed
  Care Commission, along with department directors,
  family members or consumers, Council on
  Disability
• Report issued 12/00
• Earlier legislative action allowing money to
  follow individual

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More on Missouri

• Plan focuses on eight discrete activities
• Identify programs and services
• Measure service effectiveness
• Identify number of institutionalized persons
• Identify waiting lists and pace of movement
• Examine whether consumers have adequate
  information
• Identify changes needed in community programs
• Identify means of expanding community programs
• Develop a process to help people make the
  transition into the community

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Missouri

• Includes specific action steps
• Example of activity Assess effectiveness of
  services
• Action steps
• measure rate of people moving into community
  annually
• develop provider profile to identify staff
  turnover, consumer satisfaction, consumer
  movement
• identify number of individuals trained on
  informed choice
• interview individuals who entered the system to
  determine if had informed choice

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What Next?

• This will be a long-term activity
• Lots of plans will be coming out during next
  twelve months
• Expect budget requests in 2002