The past three years have seen developments which are leading to sweeping, radical changes to the system of services for persons with developmental disabilities (DD). Many families have become confused and anxious about these changes. While we cannot remove anxiety about how the system will evolve over the next few years, we can offer some clarity about why the changes are happening.
CHANGES IN FEDERAL RULES
In early 2014, the Center for Medicare and Medicaid SErvices (CMS) issued rules which required implementation of three important principles:
- All services supported by Medicaid waivers, including residential, vocational and leisure, must be provided in an integrated setting, with certain exceptions. Medicaid programs in all 50 states were given five years to develop plans to conform to this requirement.
- Providers of direct services supported by Medicaid waivers are prohibited from also providing case management services. This requirement was put into effect immediately, but Ohio negotiated a phase-in period of nine years.
- All providers of Medicaid waiver services must implement principles of person-centered planning.
These requirements, particularly the first two, have led the County Boards of Developmental Disabilities (DD Boards) to shift operation and management of sheltered workshops and other direct services to private providers. Many DD Boards have divested direct services over the past years, but all will have to have completed this process over the next few years.
BALL v. KASICH LAWSUIT IN FEDERAL COURT
On March 31, 2016, Disability Rights Ohio (DRO) announced it filed a lawsuit in U.S. federal court against the Governor of Ohio and other state officials on behalf of six individuals and one organization for alleged non-compliance of the Americans with Disabilities Act (ADA), Section 504, and Medicaid requirements.
DRO claims that the state government has not done enough to prevent Ohioans with developmental disabilities from being unnecessarily admitted to care facilities that DRO considers to be institutions – places in which people with disabilities live, work, and receive care while separated from the wider community. The suit is primarily concerned with intermediate care facilities (ICFs) that have eight or more residents. ICFs are live-in care centers for people with developmental disabilities. DRO’s stated intention is to give residents of these facilities more choices in when and how to receive state-funded residential, employment, and other day services.
DRO seeks to represent the interests of “all Medicaid-eligible adults with developmental disabilities who, on or after March 31, 2016, are institutionalized, or are at serious risk of institutionalization in a large ICF [i.e. with 8 or more beds].” This definition is sufficiently broad to cover nearly every person with developmental disabilities living in Ohio.
The lawsuit is in its very early stages and is likely to last for several years. The suit will, however, provide substantial additional pressure on the State Department of Developmental Disabilities and local DD Boards to review programs and services to ensure that the programs are integrated and people’s choices are respected.
The Ohio Department of Developmental Disabilities, prior to the filing of the lawsuit, had established a number of initiatives to minimize the need for placements in ICFs and to allow people who want to transfer to community settings to do so without having to go through waiting lists.
Updates on the lawsuit are available through the Ohio Association of County Boards Serving People with Developmental Disabilities.
- Posted by Attorney Franklin J. Hickman