MHW: Senate Committee Finds States Lagging in Meeting Olmstead Requirements

NYAPRS Note: States continue to lag in meeting ADA requirements, as clarified by the Supreme Court’s Olmstead decision, to serve people with disabilities in the most integrated community settings. Further, state Olmstead plans lack “specific benchmarks designed to transition people with all types of disabilities out of institutions and into the most integrated setting.”
We are hoping and expecting that New York’s soon to be released Olmstead Plan will have those long sought specific benchmarks.

Senate Committee Report Finds States Lack Progress In Olmstead Obligations

Mental Health Weekly  July 29, 2013

On the 14th anniversary of the Olmstead v.LC Supreme Court decision that required states to eliminate unnecessary segregation of persons with disabilities and ensure they live in the most integrated settings appropriate to their needs, a new report released July 18 by a U.S. Senate committee finds that many states are failing to live up to the integration mandate of the Americans with Disabilities Act (ADA).

The report, “Separate and Unequal: States Fail to Fulfill the Community Living Promise of the Americans with Disabilities Act,” was unveiled by Sen. Tom Harkin (D-Iowa), author of the ADA and chairman of the Senate Health, Education, Labor and Pensions (HELP) Committee, following a year-long investigation.

After a hearing last year before the HELP Committee to assess the progress that had been made to implement the Olmstead decision, Harkin sent letters to the governors of all 50 states requesting information on home- and community-based services (HCBS). The purpose of the chairman’s request was to clarify whether states are ensuring that all populations of individuals with disabilities have the opportunity to live independently, while also providing the necessary services and supports in a cost-effective manner.

Harkin received substantive responses from 31 states. Seventeen states did not respond in any way to the chairman’s letter, despite repeated requests to do so, and two states, Mississippi and New Hampshire, sent letters declining to provide a substantive response due to pending litigation related to the Olmstead decision.

The report reveals that almost a quarter of a million working-age Americans remain unfairly segregated in nursing homes, and the number of working-age Americans with disabilities confined to nursing homes is actually growing. While progress has been made nationally, by 2010 only 12 states spent more than 50 percent of Medicaid funds on community-based care instead of institutional care.

Many states have focused more on enrolling people that are currently living in community settings into HCBS programs than on transitioning individuals living in institutional settings back into the community, the report stated.

Meanwhile, a number of key federal agencies, including Housing and Urban Development, along with the National Association of State Mental Health Program Directors (NASMHPD), last year embarked on a new initiative to offer states the opportunity to further the goals of the Olmstead decision (see MHW, June 26, 2012).

“Congress and our federal government can take additional steps to improve progress on Olmstead and fulfill the promise of independent living for Americans with disabilities that require long-term services and supports,” said Harkin in a statement. “States must set clear benchmarks to make the right to live in the community a real choice for all Americans with disabilities.”

Interestingly enough, New York officials on July 23 just announced an agreement with the U.S. Department of Justice to ensure that thousands of adult-home residents with psychiatric disabilities be given the opportunity to live in their own apartments.

“We are very encouraged to see the Senate HELP Committee focus on this issue and recognize that while there has been important movement toward serving people with disabilities in integrated settings, states are still far behind in implementing Olmstead, and hundreds of thousands of people with disabilities remain needlessly institutionalized,” Jennifer Mathis, director of programs at the Bazelon Center for Mental Health Law, told MHW.

States should be investing in serving individuals with disabilities in their own homes, which is the most integrated setting for virtually all people with disabilities, said Mathis. “As the Harkin report noted, too often even when states discharge individuals with disabilities from institutions, they are offered other congregate settings that are not the most integrated,” she said.

Mathis added, “In addition, states need to close institutional beds as people leave institutions, and reallocate those dollars to support residents in integrated settings, rather than continuing to backfill the institutional beds and re-creating the problem.”

Key findings

• In the years since the Olmstead decision, nationally there has been a fundamental rebalancing of spending on individuals with disabilities in institutions as compared to spending on home- and community-based services that allow Americans to be part of their communities. Between 1995 and 2010, states reduced the share of Medicaid spending on institutions, including nursing homes, mental hospitals, and institutions for people with intellectual and developmental disabilities, from 79 percent to 50 percent.

• However, only 12 states spent more than 50 percent of Medicaid long-term services and supports dollars on home and community-based care by 2010, and the population of working-age Americans with disabilities in nursing homes actually increased between 2008 and 2012. This is true even though 38 studies over the past seven years have clearly demonstrated that providing HCBS is more cost-effective than providing services in an institution.

• Many states’ Olmstead implementation efforts have not involved meeting specific benchmarks designed to transition people with all types of disabilities out of institutions and into the most integrated setting consistently in a way that is cost-effective. No clear reporting system for HCBS programs exists to make it possible to analyze and compare how effectively states are meeting the Olmstead mandate.

Recommendations

Among its recommendations the report suggests:

• Congress should amend the ADA to clarify and strengthen the law’s integration mandate in a manner that accelerates Olmstead implementation and clarifies that every individual who is eligible for long-term services and supports under Medicaid has a federally protected right to a real choice in how they receive services and supports.

• Congress should amend the Medicaid statute to end the institutional bias in the Medicaid program by requiring every state that participates in the Medicaid program to pay for HCBS, just as every state is required to pay for nursing homes, for those who are eligible. State and federal efforts should focus on helping people live in their own apartment or house with adequate supports.

• States should more fully examine the enhanced federal funding available under new federal programs designed to encourage states to transition more individuals into community-based settings and shift away from waivers, which allow states to set caps on the number of individuals served.

“We think many of the recommendations will be useful,” said Mathis. “In particular, we think the recommendation that the focus of state and federal Olmstead implementation efforts should be serving people with disabilities in their own homes is key.” Mathis noted that the recommendation to require all states participating in the Medicaid program to fund home and community services, just as they are required to fund nursing homes, is also important.

Mathis said she hopes to see the Centers for Medicare & Medicaid Services (CMS) issue final regulations concerning the definition of Medicaid home- and community-based services that will ensure that HCBS funding streams support people with disabilities in truly integrated

settings.

For a copy of the report, “Separate and Unequal,” visit
www.help.senate.gov/imo/media/doc/Olmstead%20Report%20July%2020131.pdf.

Olmstead Policy Academy to assist states moving into second year

The U.S. Department of Health and Human Services (HHS) and the Substance Abuse and Mental Health Services Administration (SAMHSA) have embarked on the second year of the Olmstead Policy Academy to provide an opportunity for states to learn about effective practices in implementing community integration and develop their own strategies for community integration across multiple agencies and service systems.

The initiative, commenced last September when five states - Colorado, Georgia, Illinois, Minnesota and New Jersey - were selected to participate based on their potential to benefit from the Policy Academy and their ability to implement new Olmstead-related strategies on behalf of adults and children with mental disorders (see MHW, June 25, 2012).

The Policy Academy is a federal partnership with the Centers for Medicare & Medicaid Services (CMS), Housing and Urban Development (HUD), the Department of Labor, HHS Administration for Community Living and HHS Office of Civil Rights, HHS Assistant Secretary for Planning and Evaluation, and the U.S. Department of Justice (DOJ) and a collaboration with the National Association of State Mental Health Program Directors (NASMHPD). Meanwhile, on July 18, the Senate HELP Committee released a new report, “Separate and Unequal,” indicating that much work remains to be done to implement Olmstead and the Americans with Disabilities Act (ADA).

“We are very supportive of the findings in the report that states have made steps to increase the number of people with disabilities, including those with mental health disabilities” in integrated community settings, Paolo del Vecchio, acting director for SAMHSA’s Center for Mental Health Services (CMHS), told MHW. He added that there is still more work to be done.

This year’s academy features seven states: Arizona, Maryland, North Dakota, Oregon, Rhode Island, Mississippi and Washington state. Del Vecchio noted that the members of the Olmstead Policy Academy are currently working on a pilot that addresses one of the policy recommendations in the recent Senate report on Olmstead implementation, which calls for assisting states in analyzing their community integration efforts.

SAMHSA is working with six states to pilot a set of data indicators to assess community integration. These indicators cover a range of domains, including policies and regulations, financing and resources, movement to the community/recidivism, community capacity, housing, and well-being. “The pilot will help states self-assess on how well they’re doing with community integration,” said del Vecchio. A report from that pilot will be available in September, he said.

A report about the Olmstead Policy Academy, “Restoring Lives: A Report of the 2012 Olmstead Implementation Best Strategies and Practices Policy Academy,” is available at http://www.thescanfoundation.org/report-2012-olmstead-implementation-best-strategies-and-practices-policy-academy