Since the U.S. Supreme court decided in Olmstead v. L.C., 527 U.S. 581 (1999) that unnecessary institutionalization violated the Americans with Disabilities Act (ADA), states have been under increasing pressure to serve individuals with disabilities in the community. According to the United States Department of Justice, it is established law that both unnecessarily keeping individuals with disabilities in institutions and placing them at unnecessary risk of institutionalization violate the ADA.
Most people who need long-term care would rather live at home or in the community rather than in a nursing facility. Home- and community-based services (HCBS) are a much less expensive way to meet the needs of individuals who need help with some, but not all, of the activities of daily living (ADL), specifically, bathing, dressing, eating, using the toilet and transferring from bed to chair and vice versa. Impaired cognitive function may also limit an individual’s ability to perform instrumental ADLs, such as meal planning and preparation, shopping, using the telephone and paying bills. HCBS could be invaluable to many people before they need to consider institutionalization. However,Medicaid continues to fund nursing facility services much more easily than HCBS. In fact, under many programs, an individual cannot receive HCBS through Medicaid unless it’s necessary to keep him or her out of an institution.
States have been permitted to offer HCBS under waiver programs since the early 1980’s. Waivers must target a specific population, such as individuals with AIDS, developmental disabilities, traumatic brain injury, as well as those over age 65 and those with other disabilities. Under waiver programs, states are not required to offer services statewide, and they may limit the number of individuals served.
Individuals with developmental disabilities are the largest group served by HSBC waiver programs, according to the Kaiser Foundation, and they currently receive more HCBS funds than those serving the aged individuals with other disabilities. Many individuals in nursing facilities, especially those who need lower levels of service, might qualify for HCBS if it were available.
In recent years, Congress has added several avenues to help states shift their long-term care spending from institutional facilities to HCBS. The Deficit Reduction Act of 2005 (P.L. 109-171) allowed states to amend their Medicaid plans to offer HCBS as an optional benefit without requiring that a beneficiary need an institutional level of care. Yet, few states exercised the option because of lower maximum income requirements, the lack of discretion to target certain services, such as habilitation, to certain groups, and restrictions on the services to be offered. Although the Patient Protection and Affordable Care Act (PPACA) (P.L. 111-148) removes some of those restrictions, from the agency’s perspective, they lose an important advantage of the waiver option, the ability to limit the number of beneficiaries served.
Once an agency is required to provide HCBS benefits to anyone who qualifies, the budget is less predictable, especially if eligible individuals who never applied for assistance before “come out of the woodwork“. Is new legislation needed to be sure that the transition actually saves money? What do you think?
To be continued next week..