in the spotlight

Senate Committee Finds Inadequate Implementation of Olmstead Community Integration Mandate

While nationally a larger percentage of Medicaid funds spent on individuals with disabilities has been used for home and community-based services (HCBS) versus institutional care since the Olmstead decision 14 years ago, by 2010 only 12 states spent more than 50% of their Medicaid funds on HCBS, even though it is more cost-effective to do so.

A recent Senate committee report makes wide-ranging recommendations for effective Olmstead implementation, including changes to statutes, the development of a national action plan, and increased reporting and enforcement. It also suggests that a paradigm shift is needed to transition state leaders from approaching de-segregation as a budgetary issue to approaching Medicaid delivery decisions from a civil rights perspective.[1]

In 1999, the U.S. Supreme Court ruled in Olmstead v. L.C. that under Title II of the Americans with Disabilities Act (ADA) of 1990, States must provide community based treatment for persons with mental disabilities rather than in institutions under specified conditions. [2]

In 2001, President George W. Bush issued an Executive Order (EO) that established federal policy to assist the states and localities implement the Olmstead decision. This EO required six designated federal agencies to help states assess their compliance with Olmstead and provide technical guidance to help the states achieve the goals of Title II of the ADA. The six agencies also were required to evaluate their own policies and regulations to determine whether revisions were needed to improve the availability of community-based services. The EO also required the U.S. Attorney General and the Secretary of Health and Human Services to fully enforce Title II of the ADA.[3]

This summer, the U.S. Senate Committee on Health, Education, Labor & Pensions (HELP) issued a report on the status of the ADA's integration mandate, entitled "Separate and Unequal: States Fail to Fulfill the Community Living Promise of the Americans with Disabilities Act." This report was based on responses to Senator Tom Harkin's queries to all 50 states to ascertain their progress with transitioning individuals out of institutions and into community-based services.[4] Only 31 states provided substantive responses; 17 states did not respond in any way, despite repeated requests.

This report found that while providing services outside of an institutional setting was more cost-effective than institutional care, only 12 states spent more than 50% of their Medicaid funds on home and community-based services. The report found inequities in access across the states: in 2009 the percentage of state spending on HCBS long-term services and supports (LTSS) varied from less than 20% to more than 80%. It also found that "progress in providing HCBS for persons with physical disabilities and mental illnesses has lagged significantly behind efforts for individuals with intellectual and developmental disabilities" and that hundreds of thousands of people are still on waiting lists for HCBS.

Many states focused more on enrolling people who were already in community settings into HCBS programs rather than transitioning people in institutional settings back into the community. Additionally, it is difficult to track progress because of a lack of consistent classification, tracking, and reporting across the states. While many states have Olmstead implementation plans required by the US Department of Health and Human Services, those plans generally do not include enforceable benchmarks and targets designed to cost-effectively transition people with all types of disabilities out of institutions and into the most integrated setting.

The report provided a number of recommendations related to amending statutes, increased reporting, goal-setting, and enforcement. It recommended that Congress amend the ADA to strengthen its integration mandate and clarify that every person who is eligible for LTSS under Medicaid "has a federally protected right to a real choice in how they receive services and supports." It recommended that Congress "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."

The report recommended that the Centers for Medicare & Medicaid Services (CMS) finalize its proposed rule defining the types of settings that qualify as home and community-based. (The report noted two states defined a "home" as including being homeless or living in a car.) It identified several federal agencies that should jointly create a high-level interagency task force by January 2014 to educate states about their Olmstead obligations and federal tools that can help them comply. US Department of Health and Human Services and the Department of Housing and Urban Development jointly develop a national action plan to expand integrated housing access consistent with the Olmstead decision.