2010 Patient Protection and Affordable Care Act and Olmstead Implementation for Disabled and Elderly. Information Bulletin #311 (5/10)

by Steve Gold

With the recent enactment of the 2010 Patient Protection and Affordable Care Act in March, there are a number of critical long-term services supports (LTSS) provisions that your States can implement that will dramatically improve community services opportunities. States may not act if not pushed by advocates!!! These new statutory provisions make the ADA and the Olmstead decision more powerful than at anytime since 1999.

Some background information: the Supreme Court in Olmstead rejected the States' argument that Medicaid "reflected a Congressional policy preference for treatment in the institution over treatment in the community." The Court also emphasized that "since 1981, Medicaid has provided funding for state-run home and community-based care through a waiver program."

It was this existence and availability of Medicaid Waivers which moved the Court in Olmstead to hold that unnecessary institutionalization was discrimination under the ADA. Since then, Congress has offered States additional Medicaid opportunities to end discrimination. For example, States were offered Real System Choice Grants and Money Follows the Person Grants to reform their systems and get people out of institutions.

With the 2010 new health care reform statute, States will have many more Medicaid community-based program opportunities to end discrimination - IF they take advantage of these new LTSS opportunities and apply.

Four provisions of the 2010 Act will allow states to offer more home and community services. States will have no longer have excuses to continue their discriminatory funding practices. Advocates should work with your State to implement these LTSS opportunities. These programs become effective October 2011 or before, so advocates should begin now to make sure your State and your Medicaid officials take advantage of these provisions. Here they are:

1. Community First Choice Option (Section 2401)
For persons with disabilities regardless of age, who meet your State's institutional level of need criteria (nursing home, ICF-MR, IMD) the Federal Medical Assistance Percentages (FMAP) - the federal reimbursement to your state for community-based attendant services and supports in the community - will be increased by six percent.

Since community-based attendant services and supports are the critical need to live in the community, your State will be able to focus on this service.

When this option is selected, these services will be mandatory and not a "waiver." Cost caps, cost neutrality and waiting list restrictions are not part of this program. Therefore, States can provide community-based services and supports to persons with the most severe disabilities and receive enhanced federal funds. Transition costs from nursing homes and other institutions are also permissible and will receive the increased FMAP. These transition costs can now include first month's rent and utilities, deposits, and household supplies.

2. Removal of Barriers to Providing Home and Community Based Services. (Section 2402).
This provisions broadens the scope of permissible Medicaid home and community-based services under the current optional State Plan1915 (i) program. For persons with disabilities regardless of age, who meet your State's institutional level of need criteria and for whom services do not exceed the institutional costs, States can now include services which could not in the past be approved under section 1915 (i).

States cannot cap the number of people who receive these services but can target the benefits to people with specific conditions as well as based on functional need. Services must be provided statewide. They also raised financial eligibility from 150% of poverty to 300% of SSI.

Simply stated, the improved optional 1915 (i) when selected by your state will act as mandatory community services.

3. Money Follows the Person Rebalancing Demonstration. (Section 2403).
This provision extends the federal support for MFP from 2011 to 2016 by adding more than $2 billion to provide enhanced FMAP so that States which did not sign up for MFP in the past can now have the opportunity. One use of these funds is to reimburse states persons with disabilities regardless of age, whom your State moves from the institution to the community and their own homes and apartments. Also, Congress reduced the eligibility requirement that a person be in nursing home from 6 months to 90 days.

4. "Incentives for States to Offer Home and Community-Based Services as a Long-Term Care Alternative to Nursing Homes," a Rebalancing Incentive Payment Program. (Section 10202).
This provision provides for enhanced FMAP from 2011 through 2015 for States that "rebalance" their long-term expenditures so that more Medicaid funds are expended on community-based services rather than to nursing homes and ICF-MR facilities.

For those most unbalanced States (i.e., States that spent less than 25% of Medicaid LTC funds in the community), their Federal Medical Assistance Percentages - the federal reimbursement - will be increased by five percent for increased services in the community until they reach at least 25% spending on community services.

States that spent between 25% and 50% of their Medicaid LTC in the community will receive an enhanced two percent increase in federal match until they reach at least 50% spending on community services.

States receiving this funding have till 2015 to reach these goals.

To receive this funding, states must make "structural changes" in their Medicaid program. States must develop a "single entry point" so that before a person goes into a nursing home they will be offered real community-based services; States must use a standardized assessment instrument to assess what services a person needs to stay in the community; and States must provide real case management services for eligible persons.

Congress appropriated $3 billion for these rebalancing. States must apply and submit a plan to HHS/CMS. All funds must be used for new or expanded home and community-based services.

DISABILITY AND ELDERLY ADVOCATES:

The 2010 health reform act presents many opportunities, however as you all are very aware, your States and Medicaid officials will implement these changes only if they are pushed by you.

Get to your Medicaid officials now. Make sure they know about and are planning to take advantage of these new provisions. If they do not take advantage, they will have no defenses against Olmstead lawsuits in the future. Congress has given them the tools to provide home and community services and to stop discriminating. We must work with the States to make them implement these opportunities. If they don't - using Olmstead as a powerful advocacy/legal strategy is a resource we have.

DON'T MOURN ORGANIZE!

Steve Gold, The Disability Odyssey continues

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To contact Steve Gold directly, write to stevegoldada@cs.com or call 215-627-7100.