The most egregious problems with H221 are the elimination of developmental services for people who are not eligible for waiver services and for all people over the age of 45 (p. 10 lines 43-46).
1. People with developmental disabilities who do not meet institutional level of care will lose all developmental supports and services.
a. Who are these Idahoans? -They are 524 people who have a severe, lifelong disability occurring at birth or in childhood. The disability must cause significant limitations in at least three major areas of life activity, and it must, by definition, require lifelong services and supports which are planned and supervised (see definition from Idaho Code, attached). People with developmental disabilities (DD) who do not meet the Idaho standard for institutional care can have a measured level of independence skills as low as a child who has just turned eight (8) years old, a second grader. They may also have other conditions such as epilepsy, cerebral palsy or autism. They can function slightly above the 8 year level if they have severe and frequent maladaptive behavior like violence or tantrums.
b. What services are left for them? -They may receive medical services like physical therapy if they have physical illnesses, but they will not have any other service designed to help them live safely or independently at home.
If a parent were to abandon an eight year old without any supervision or supports, they would be liable for child neglect. Yet the state is abandoning these vulnerable adults by removing their only safety net service. Some of these adults have some support from families but for many, their parents are dead or elderly, and they may not have any siblings available for support. H221 would eliminate their services regardless of the lack of family or community supports.
2. People Over 45 who do meet the level of care provided in an institution for people with Intellectual impairments (ICF/ID) will be transferred to a waiver for people with physical disabilities, if they need nursing home care. Otherwise they lose all in home supports.
a. Who are these Idahoans? – These are people who have an evaluated independence level of less than eight (8) years, or slightly more than eight years with severe behavior problems.
b. What services are left for them? –
i. Some will be transferred to the Aged and Disabled (A&D) waiver if they can prove that they need nursing home care. They must be evaluated by a nurse using an assessment instrument, for medically related personal care needs such as assistance with bathing or eating and chore services if they cannot do things like cook or clean house, do to physical limitations. But under the A&D waiver limits, no one can receive more than 8 hours per day of personal assistance under the A&D waiver. Even people who qualify for the A&D waiver may need 24 hour supervision, since all of them function at less than an 8 year level of independence. This will not be available in their current placements forcing them into institutional care.
ii. Since the A&D waiver has completely different eligibility criteria from the DD waiver, some people on the DD waiver will not meet the nursing home level of care requirements. People who do not have physical limitations, but do have severe intellectual impairments and behavioral problems, may not qualify for the A&D waiver at all. After H221, their only option will be institutional placement.
These sections violate Federal Medicaid laws and the Americans with Disabilities Act.
1. Federal Medicaid laws require people who need “active treatment” to receive it in either the ICF/ID level of care or in the Skilled Nursing level of care. The federal definition of who needs “active treatment” is attached. It would include every person currently on the DD waiver and many of the people who currently do not receive DD waiver services. The federal laws and regulations do not make any arbitrary age cutoff much less one as early as 45. The Centers for Medicaid and Medicare Services (CMS) have also required states to show that their HCBS Waivers provide an equivalent for active treatment. By prohibiting active treatment for people over 45, H221 places Idaho in immediate violation of federal Medicaid standards.
2. The Americans with Disabilities Act as applied by the Supreme Court in Olmstead v. L.C. and E.W. requires state Medicaid programs to insure that people with disabilities are not forced to accept institutional care when community based services could meet their needs. H221 prohibits people with developmental disabilities from receiving active treatment in Idaho’s community based waivers, leaving the ICF/ID facilities as the only place where active treatment can be provided. This is a violation of the ADA integration mandate on its face and puts Idaho in direct conflict with the ADA, and the Olmstead decision. (See attachment on the ADA).
Statutory reductions in psycho-social rehabilitation (PSR) impose needlessly rigid and inadequate limits which will force many people with severe and persistent mental illness into higher cost services or into the criminal justice system.
1. Allocating the caps by the week, instead of the month or the year robs people of flexibility needed to respond to crises. At the same time it induces people to use the maximum number of hours each week to keep their allocation. Authorizing PSR hours by the month would allow a person to reduce hours when they are doing well and have hours available when they need them for a crisis. Establishing a weekly limit in statute prevents people from budgeting their services in the most efficient way and insures that they will not have enough hours to deal with a crisis when one occurs. This is another example of why most of these changes should be made in rules and not imposed as inflexible statutory requirements.
2. Four hours is not enough time to deal with a person who is decompensating or dealing with a personal crisis. When a person begins to be overwhelmed by symptoms of increasing severity they need intensive supports to avoid hospitalization. With a limit of four hours per week PSR workers are forced to simply send the person to the emergency room or call law enforcement when the hours run out. This is already happening under the current five hour cap.
Imposing Medicaid caps on physical therapy, occupational therapy and speech therapy will be inadequate for people with lifelong disabilities. Medicare caps are devised for the purpose of addressing an injury or trauma caused need for these therapies. People with cerebral palsy, for example, need a lifetime of therapeutic interventions to maintain their level of functioning, and they may need many sessions to adapt to new augmentative communications devices. By putting these limits in statute, H221 ignores the unique needs of people with disabilities. These issues should be addressed in negotiated rules, not statutes.
H221 prohibits people with dual diagnoses of mental illness and developmental disability from receiving appropriate services. About 600 people in Idaho have the great misfortune of having both a serious mental illness and a developmental disability. About 300 of these people are children. Very few professionals are trained or qualified to treat both conditions. Making a person choose between treatment for one or the other is like asking a person with both diabetes and heart disease to choose which condition can be treated. H221 does this on page 15 lines 41-45 and again on page 16 lines 25-27. This was suggested as a short term limitation to get through temporary budget crisis. As a permanent change it will have serious consequences. Developmental specialists are not trained to recognize psychiatric symptoms and PSR workers are not trained in behavioral management techniques for people with autism, for example. These services are not duplications but separate and necessary interventions designed to keep people safe in the community. In some cases the Medicaid rules for one service would exclude dealing with the problems addressed by the other. This provision also violates the Americans with Disabilities Act by denying access to one service based on a person’s need for another service caused by their specific disability.