Saturday, June 30, 2012

Comment #2 (CMS-2249-P2): Choice for all - It's the Law

The law is on the side of maintaining a full range of options and services covered by the HCBS waivers:

  • The Supreme Court's Olmstead decision supports choice, despite the fact that it has been widely misinterpreted as a mandate to close all institutions: “We emphasize that nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings...Nor is there any federal requirement that community-based treatment be imposed on patients who do not desire it.” 119 S. Ct. at 2187. Furthermore, the Olmstead decision does not comment specifically on or mandate the closure of community-based programs or residential placements of any particular size nor does it designate these programs as institutional in nature and therefore discriminatory.
  • Olmstead, and by extension the Americans with Disabilities Act, gives no support to eliminating or limiting access to settings that are "institution like", housing complexes that are "disability-specific" or designed around an individual's diagnosis, or housing complexes of any particular size, if these settings are appropriate to the needs of the individual.
  • Medicaid law for the waiver programs narrowly defines institutional care as care received in a nursing facility, an intermediate care facility for the mentally retarded, a hospital for mental diseases, or other hospital settings. It does not limit or define community settings in terms of “institutional qualities”. 

Whether it is proper for CMS in proposed rule changes to reinterpret and limit access to community settings that have “institutional qualities” is highly questionable.

The person-centered planning meeting should be the place where the individual’s needs and preferences are matched with compatible and appropriate services and living arrangements and where modifications to existing settings and acceptable compromises are determined. Maintaining a full continuum of services and settings is a better plan than limiting options or making them harder to access because some people might find them objectionable.

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