Advocacy & Issues Management Committee

 

The Olmstead Supreme Court Decision: Impact and Recommendations

Prepared by the North Carolina Association of County Directors of Social Services

September 14, 2000

Overview

"The Supreme Court ruled, in Olmstead vs. L.C. that it is a form of discrimination under the Americans with Disabilities Act (ADA) when states fail to find community placements for individuals with disabilities thus causing them to remain in institutional settings." (Bazelon Center for Mental Health Law)

The Olmstead Supreme Court decision reflects the values and commitment of the social work profession to serve our clients in the least restrictive setting possible with treatment appropriate to the individual’s unique needs.

The target populations include children and disabled/elderly patients who are inappropriately placed in institutional settings (including hospitals, nursing homes and residential treatment facilities). The goal is to serve these patients in the least restrictive setting possible.

Identifying Individuals whom could be cared for in the Community: Individuals in potential need of institutional care should be identified as early as possible so as to allow preventative treatment rather than ‘reaction’. Assuring that children or older/disabled adults have comprehensive health assessments and timely access to appropriate services is critical to prevent escalation of the problems and subsequent out-of-home placement. When problems have escalated such that out-of-home care is being considered, the ‘contact’ agency (the first agency that the person or caretaker has contact with) should refer to mental health (if mental health is primary problem) or DSS to initiate a comprehensive assessment (if LTC is primary need).

Children: We believe that parents are responsible to nurture, protect and provide for their children to the greatest extent possible. When the parent’s best efforts fall short, it is in society’s best interest to intervene with services necessary to enable the child to be cared for, with maximum parental involvement, in the least restrictive setting possible.

A full continuum of services must be made available to assure timely response with service appropriate to the child’s needs. Currently, the mental health continuum for children is not meeting the behavioral health needs of children due to a shortage of state funding, inadequate Medicaid reimbursement rates and insufficient supply of residential care providers. An effective continuum begins with early identification of and response to health care issues. It should be noted that behavioral health component has never been part of the federal mandated EPSDT screen for Medicaid enrolled children. It is hoped that this will begin soon. However, once problems are identified, it is critical that the services necessary to treat the problem be timely provided. This will take resources.

North Carolina’s General Assembly and DHHS should be responsible for seizing every federal funding stream possible to provide resources to treat children in the least restrictive setting possible and without the parents having to relinquish custody ‘just because they are too poor to pay’. Where the federal funding leaves off, State dollars must be provided to ‘fill the gap.’

Older and Disabled Adults:

We support the Institute of Medicines, LTC Task Force, Overall Policy Statement: North Carolina’s policy for long-term care is to support older and disabled persons needing long-term care, and their families, in making their own choices with regard to living arrangements and long-term care services that will result in appropriate, high-quality, cost-effective care provided in the least restrictive setting.

We agree with the LTC Task Force Recommendation that "Every North Carolinian should have access, either in the county or within reasonable distance from the county, to the following long-term care services:

• Long-term care information and assistance services
• Transportation
• Housing and home repair and modification
• Home delivered meals
• Durable medical equipment and supplies
• Medical alert or related services
• Nursing services
• Adult day care /day health care or attendant care
  (including respite care)
• In-home aide services
• Home health care
• Adult care homes (various types)
• Nursing homes
• Care management for high-risk or complex conditions

In addition to the long-term care services listed above, older adults and people with disabilities need other medical, mental health, dental, vision, and hearing services to meet their health and functional needs. Individuals who have functional, medical or cognitive impairments may also need guardianship services or protective services to ensure that their long-term care needs are being met."

We recommend that local DSSs continue to be the Portal of Entry for older and disabled adults in need of publicly funded Long Term Care. Eligibility determination to identify appropriate funding and a Multi-disciplinary Assessment to determine the appropriate level of care and services are already functions performed by local DSSs.

Services and Resources Necessary to Comply with L.C. and the Overall Policy Statement.

At a minimum, North Carolina can do the following in order to secure the resources it will need to avoid unnecessary institutionalization:

• Implement a ‘behavioral health’ component to the ‘Comprehensive Health Screening’ for ALL Medicaid and Health Choice enrolled children and provide services necessary to appropriately address identified problems and the resources necessary to pay for them.
• Provide State funding for Medicaid at Risk Case Management.
• Remove the ‘cap’ and increase eligibility limits for the Medicaid waiver programs (CAP Disabled adults, CAP Developmentally disabled adults, Katie Beckett)
• Allow ‘periodic services’ to be reimbursed by Medicaid for residents of group homes.
• Have no restrictions on prescription of appropriate medications for mental illnesses, including the newer "atypical" anti-psychotics, and individuals are not required first to fail on older, less effective drugs.
• Expand Medicaid eligibility to cover more children, thereby freeing up Health Choice resources to cover more children. Currently, Health Choice is said to be running low on funding.
• Assure that Medicaid and Health Choice services for children are seamless so those children in each program have access to the same services. Currently, children of different ages in the same household are treated differently depending upon the program for which they qualify.
• As spending on state facilities is reduced for specific populations, transfer 100% of those funds to be used for community based services.
• Increase State funding for community based services while maximizing federal resources.
• Seek resources under Section 811, Supportive Housing program, to provide rental assistance for individuals who might otherwise be unnecessarily institutionalized.
• Assure appropriate discharge planning to avoid homelessness for individuals discharged from state psychiatric facilities and has sought resources for housing individuals at risk of long-term institutionalization under the McKinney Act.
• Assure that all eligible individuals with serious mental illnesses have assistance in applying for Supplemental Security Income or Social Security Disability Insurance benefits to which they may be entitled, including procedures for collaboration between hospitals and local Social Security offices.
• More patients with mental illness may be placed in Adult Care Homes. The General Assembly needs to immediately establish rules requiring appropriate training for care providers; a plan to protect vulnerable residents from harm; a requirement to advise applicants of the facility ‘diagnosis’ profile; and an increased rate as the facility provides a more intensive level of care. Also, allow facilities to receive Medicaid reimbursement for ‘periodic’ services delivered to residents.
• Group Homes: Facilities of 16 or fewer beds are not considered "Institutions for Mental Diseases" (IMD) under Medicaid law. While group homes are not a separately defined Medicaid services and states may not claim reimbursement for the cost of room and board, they may bill Medicaid for necessary group home staff and for other mental health services provided to residents.
• State Appropriation: If accomplished through savings related to hospital closing there are no fiscal barriers. If these savings are not available up-front, states will struggle with start-up and transitional funding. Medicaid reimbursements are not available until programs/services are set-up to provide/bill so some investment of state funds in start-up will be unavoidable.
• Carefully monitor the impact on Adult/Child Protective Services, In–Home Service Case Management, Guardianship, Adult Care Home Quality Assurance, Foster Care for children, Special Education AND ALSO provide additional resources to assure that these mandated services remain timely and available to all who need them.
• Guiding Principle: The system shall not give incentive to parents to give up custody of their children ‘just to pay for medically necessary treatment.’
• Guiding Principle: The system shall not give incentive for a spouse to place his/her mate in a nursing home just to access needed care.
• Guiding Principle: The system shall not have a waiting list for Medicaid enrolled people to receive medically necessary services appropriate to their need.
• Guiding Principle: The state shall not cost shift public health and mental health costs to the County.

Other Concerns:

The labor shortage in providing the personnel necessary to provide community based services and the traditionally low Medicaid reimbursement rates will continue to restrain the supply of providers.

For further information concerning this input document, please contact any of the following: Bobby Boyd or Susan Osborne, co-chairs of the NCACDSS Children and Family Services Committee; Nan Campbell or John Wasson, co-chairs of the NCACDSS Services to Older and Disabled Adults Committee; Dan Hudgins or Calvin Underwood, co-chairs of the NCACDSS Advocacy Committee; Earl Marrett, President, NCACDSS; or Sharon Hirsch, Executive Director, NCACDSS.

Thank you for seeking input and for your consideration of our input.

Respectfully Submitted,

Earl Marrett, President

North Carolina Association of County Directors of Social Services