The change was set into motion by the Centers for Medicaid and Medicare Services, which required that Colorado's reimbursement system be standardized after an audit found discrepancies in how Medicaid dollars were being spent ...The state's developmental disabilities division created a new model that bases benefits on a person's level of disability. The system also places limitations and caps on spending.It sounds like Colorado may have done something like Hawaii did, moving people with disabilities from one type of medicaid program to another, with a subsequent loss of civil rights.
Tuesday, June 30, 2009
Monday, June 29, 2009
Sunday, June 28, 2009
Saturday, June 27, 2009
Two Federal Judges React in Two Completely Opposite Directions Regarding Medicaid Home Services Cuts
several states have made or proposed changes to programs that help seniors and people with disabilities live independently; CMS guidance clarifies that any changes to such waiver programs that would result in fewer people being enrolled would violate the MOE requirement for the increased federal Medicaid funding. As a result of this guidance, states will have to reverse these cuts or rescind these proposals, at least until December 31, 2010The state of Hawaii has eliminated all of its home and community based waiver services except for the program for the developmentally disabled, and radical service cuts in that program are placing the state in potential violation of the ADA and the rights granted under the Olmstead decision. Interesting, a Performance Report printed by the DDMR division of the Hawaii state department of health in September of 2008, showed FY 2009 expenditures dropping 65% from FY 2008, from more than $20 million annual to only $7.2 million annually. That's a $14 million cut in the services that enable adults and children with special health care needs to remain at home, with their families. On the other hand, the state seems to be requiring an additional $10 million over FY2008 for administrative positions, mostly related to what the state budget keeps referring to as the "proposed Division-wide reorganization." Do we know anything about this reorganization? Why is DDMR disappearing? Who is going to take over providing the financial supports for the home and community care our citizens with special health needs require? The only answer I can come up with is that Hawaii's two new medicaid managed care companies are supposed to be picking up the slack from the waiver programs. The only problem with that solution is that the definition of a "budget neutral program" is completely different for a medicaid program authorized under Section 1115 of the Social Security Act than it is for a medicaid program authorized under Section 1915. And that difference results in a shift in expenses from actual services to employee salaries and insurance corporation profits. Back in 2006, the UCSF National Center for Personal Assistance Services issued a simple explanation of the different budgetary ramifications for 1915(c) waivers as opposed to 1115 programs:
Like 1915(c) programs, 1115 programs must be budget neutral. However, for 1115 programs this means that the program cannot cost Medicaid any more than the state would have spent in the absence of the waiver1, 26 whereas 1915(c) programs should not cost more than providing state plan services, such as nursing home care, to the same population.In other words, Hawaii's new 1115 Managed Care Medicaid Organizations can't spend any more funds than they would if there were no waiver participants. Excluding from the budget neutrality calculations any funds for an individual, say, with developmental disabilities on a 1915 waiver, is going to reduce precipitiously the budget compared with what would be allowed counting all those previous HCBS waiver participants back into the figures. But all of this was originally calculated before Obama was elected and the ARRA was even being dreamed about. So what is Hawaii spending the money on? It's not on the children and adults with disabilities who desperately need to remain at home with their families and communities. The CMS specifically states that:
To be in compliance with the MOE, a state cannot have done the following after July 1, 2008: ... Eliminated coverage for home- and community-based waiver care that costs more than institutional care, which could make it harder for some individuals to qualify for waiver coverage.
Thursday, June 11, 2009
The DD/MR long term care services are being preserved as a 1915(c) waiver and are not incorporated into the 1115 waiver of QUEST and QExAOn February 1, 2009, this same "robust menu of services which includes Skilled Nursing, Respite and Personal Care services" were cut by anywhere from 15% to 70% for virtually everyone in the DD waiver. This included children within the age bracket covered by EPSDT. (As an aside, what nobody knew was that the two MCOs had been told that any services in place on February 1 could not be changed for 90 days. So if you (a parent or caregiver) had made an informal appeal before February 1, your family member's services could not be cut for at least 90 days. Nobody told us that, though, until after February 1 had come and gone.) Now the state is admitting they are considering another 15% cut in DD service budgets. State DD officials are telling parents to go to their new medicaid MCO to access EPSDT funds for home support services. According, once again, to Hawaii's state medicaid director,
To be in compliance with the MOE, a state cannot have done the following after July 1, 2008: Made it harder for an individual to qualify for nursing home care or home- and community-based waiver services. Eliminated coverage for home- and community-based waiver care that costs more than institutional care, which could make it harder for some individuals to qualify for waiver coverage. Removed individuals currently receiving services through a home- and communitybased waiver program or reduced or eliminated home- and community-based waiver slots that were approved but not filled as of July 1, 2008.Hawaii has violated all three of those provisions. According to a document published by the Kaiser Foundation in March 2009, Hawaii was expected to receive an estimated total of $360 million in additional Federal medicaid funds between October 1, 2008 and December 31, 2010. According to this same report, Hawaii should already have received at least $70.6 million in these funds from the feds. What's the money being spent on? Why is Hawaii apparently being allowed to flaunt federal regulations? Why are our children being threatened with institutionalization by the representatives of EPSDT? Who's going to put a stop to this? A Primer in the Different Types of Medicaid Waiver Programs A 1915(c) waiver program refers to Section 1915, item (c) of the federal Social Security Act. The definition is:
“medical assistance” ..... payment for part or all of the cost of home or community-based services (other than room and board) approved by the Secretary which are provided pursuant to a written plan of care to individuals with respect to whom there has been a determination that but for the provision of such services the individuals would require the level of care provided in a hospital or a nursing facility or intermediate care facility for the mentally retarded the cost of which could be reimbursed under the State plan. For purposes of this subsection, the term “room and board” shall not include an amount established under a method determined by the State to reflect the portion of costs of rent and food attributable to an unrelated personal caregiver who is residing in the same household with an individual who, but for the assistance of such caregiver, would require admission to a hospital, nursing facility, or intermediate care facility for the mentally retarded.(my emphasis)Hawaii's state medicaid director stated in his email that
Section 1915 (c) (4)(B) of the Social Security Act does allow for the reduction of the number of hours and days for respite care provided under Section 1915(c) (2) D) if the total cost of care exceeds the cost of care in a Nursing Home. Thus, the DOH does have the authority to reduce respite services if the conditions of Section 1915(c)(2)(D) are affected.What Section 1915(c) (4) (B) of the Social Security Act actually states is that:
Are "respite care" and the long-term care services required to maintain an individual with special health care needs at home the same thing? They are not, so I don't understand how potential reductions in "respite care" (intended to give the caregiver a break) should have any impact on long-term care supports required by the caregiv-ee. Paragraph (2) (D) referred to above states:
(4) A waiver granted under this subsection may, consistent with paragraph (2)—
(A) limit the individuals provided benefits under such waiver to individuals with respect to whom the State has determined that there is a reasonable expectation that the amount of medical assistance provided with respect to the individual under such waiver will not exceed the amount of such medical assistance provided for such individual if the waiver did not apply, and
(B) provide medical assistance to individuals (to the extent consistent with written plans of care, which are subject to the approval of the State) for case management services, homemaker/home health aide services and personal care services, adult day health services, habilitation services, respite care, and such other services requested by the State as the Secretary may approve and for day treatment or other partial hospitalization services, psychosocial rehabilitation services, and clinic services (whether or not furnished in a facility) for individuals with chronic mental illness. (my emphasis; this paragraph doesn't state what Hawaii's medicaid director said it did)
Except as provided under paragraph (2)(D), the Secretary may not restrict the number of hours or days of respite care in any period which a State may provide under a waiver under this subsection. (my emphasis)
(2) A waiver shall not be granted under this subsection unless the State provides assurances satisfactory to the Secretary that—..... (D) under such waiver the average per capita expenditure estimated by the State in any fiscal year for medical assistance provided with respect to such individuals does not exceed 100 percent of the average per capita expenditure that the State reasonably estimates would have been made in that fiscal year for expenditures under the State plan for such individuals if the waiver had not been granted.However, in 1999 (after the 1991 writing of the above paragraphs in the Social Security Act), the Supreme Court released what has become known as the Olmstead Decision.
In Olmstead v. L.C. and E.W., 119 S.Ct. 2176 (1999) the Supreme Court stated loud and clear that the denial of community placements to individuals with disabilities is precisely the kind of segregation that Congress sought to eliminate in passing the Americans with Disabilities Act (ADA).According to the Supreme Court, the rights to community support services extends to individuals already living in the community but at risk of institutionalization because of a lack of appropriate community supports:
Since the Makin [a district court case in Hawaii] decision numerous courts, including the 10thFisher v Oklahoma, have confirmed that individuals “at risk of institutionalization” can successfully pursue an Olmstead lawsuit. In addition the U.S. Department of Health and Human Services, Office of Civil Rights (the federal agency responsible for ensuring that states comply with the Supreme Court decision in Olmstead) has confirmed that the mandate of Olmstead applies to people living in the community, but at risk of institutionalization because of a lack of appropriate community supports. (See HHS, Olmstead Circuit Court of appeals in Update #2, letter to state Medicaid Directors, July 26, 2001).That review of the Olmstead Decision goes on to note that:
Olmstead is not a case based on the federal Medicaid law. The Supreme Court decision did not directly change Medicaid law. What the Court did do is make it clear that the state must operate its programs in a manner that complies with the ADA integration mandate. Of all state programs, the Medicaid program is the one most likely to be impacted by the Olmstead decision, because it is a major source of state financing for long-term care for people with disabilities. Furthermore, the Medicaid program is structured so that it is much easier to obtain long-term care in an institution than to receive similar supports in the community. This structure creates an inherent tension as far as operating the Medicaid program so that it complies with Olmstead.
"Inherent tension" is putting it mildly.
"Inherent tension" is putting it mildly.
These are managed care medicaid programs.
There are several descriptions online of the differences between Section 1915(c) and Section 1115 waivers, but the following is very to the point:
A second type of medicaid waivers are those authorized under Section 1115 of the Social Security Act.
A second type of medicaid waivers are those authorized under Section 1115 of the Social Security Act.
these Waivers are research and demonstration Waivers......When states accept the 1115 Waivers, there must be an evaluation process to ensure that those whom the original Medicaid law intended to include receive benefits and servicesThe budgeting distinction between the two types of waivers has enormous impact on the provision of the long term care services provided to Medicaid participants:
Like 1915(c) programs, 1115 programs must be budget neutral. However, for 1115 programs this means that the program cannot cost Medicaid any more than the state would have spent in the absence of the waiver1,26 whereas 1915(c) programs should not cost more than providing state plan services, such as nursing home care, to the same population.An enormous source of tension with Section 1115 "demonstration projects" is that they allow profit-making companies to administer EPSDT. The National Health Law Project has published a list of 30 questions that all should be answered "yes" in evaluating whether a managed care project is meeting EPSDT requirements.
Friday, June 5, 2009
If your state is considering implementing a Medicaid policy that is more restrictive than its July 1, 2008 rules, please contact us. In particular, we understand that members of Congress are monitoring the extent to which states are proposing service cutbacks. Please contact us if service cutbacks are being proposed or implemented. We are also interested in hearing from advocates in states that may obtain enhanced FMAP but use it for non-Medicaid purposes, i.e. on highways or other infrastructure projects.In other words, if any of your child's services received through medicaid (and I would ask if that shouldn't include EPSDT services provided by your school) have been reduced since July of 2008, then your state isn't eligible for that nice chunk of federal money coming it's way. It's what NHelp refers to as the "maintenance of effort requirement" of ARRA. Individual states will lose their new federal funding if the federal government discovers they've cut disability services (and particularly waiver services) after July of 2008. The states obviously don't want that to happen, but as my roster of the "hall of shame" has grown to 15 states, it appears not a lot of attention is being paid to this requirement. Please, please let NHelp know if there have service cuts in your state (or county) since July 2008 that haven't been reinstated. It's so important for our kids and their futures. NHelp's contact information is:
NOTE: Please be advised that NHeLP cannot provide legal advice to individuals. We are not a direct service agency. The following websites may assist you in locating legal resources in your community:
- LSC Directory-legal help in civil (not criminal) matters for low-income people.
- Protection & Advocacy System--provides protection of the rights of persons with disabilities through legally based advocacy
- The American Bar Association website provides useful links to lawyer referral services and pro bono legal help for the poor.
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- Disability Mom
- I'm the mom of a child with disabilities. Hannah's first neurologist said she might never develop beyond the level of a 2 month old infant, and there wasn't anything I could do about it. The brain damage was just too severe. Nine years later, she walks, uses a touchscreen computer and I've just been shown she can learn to construct sentences and do simple math with the right piece of technology. Along the way, I discovered I needed to teach myself what Hannah's rights to services really were. Learning about early intervention services led to reading about IDEA and then to EPSDT. I've been waiting for the Obama administration to realize the power and potential of EPSDT for the medical rights - including the right to stay at home with their families - of children with disabilities. The health reform people talk about long term care, and the disability people talk about education and employment, but nobody is talking about EPSDT. So I am.