ICFs/MR & NFs AS PERMANENT HOMES

ENTRY AND PERMANENT STATUS RIGHTS

Did you know that ICFs/MR (Intermediate Care Facilities for people with Mental Retardation) & NFs (Nursing Facilities) can be elected by their residents as their permanent homes (or their legal representatives can make that choice for them)?

"Ugh! Who would want that?" People do; because, for some folks, such residences afford more, not less, freedom and independence. Also, specialized medical and therapies as well as supported activities available near home makes them very desirable to some. So, while this information isn't for everybody, it will be interesting for some who may have been having difficulty gaining entry and others who may be having trouble having their choice to remain honored.

It turns out that for those who qualify, entry and permanent status is a right that is supported by Medicaid Law. The matter came up because the State of Illinois had determined that ICFs/MRs were "transitional," not permanent residences. Led by Rita Burke, Coordinator and President of the Illinois League of Advocates for the Developmentally Disabled & VOR Co-coordinator, 30 organizations signed a letter to the Governor citing the laws relevant to ICFs/MRs as permanent homes. Here are some excerpts:

" Right to access ICFs/MR is an entitlement:
Participation by states in the Medicaid program is voluntary; however, if a state elects to provide certain services, the state’s provision of those services is “mandatory upon them.” 42 U.S.C. §1396a(a)(1).

If a state elects in its Medicaid plan (as Illinois does) to offer qualified individuals services in an ICF/MR, it must provide that “all individuals wishing to make application under the plan shall have the opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals.” 42 U.S.C. § 1396a(a)(8)."

" Right to ICF/MR services is legally enforceable:
The State must provide Medicaid services that it has agreed to provide to eligible individuals with “reasonable promptness.” The right to ICF/MR services has already been tested in Federal District and Appellate Courts in Florida. In Doe v. Chiles, 136 F.3d 709 (1998) the State of Florida argued that ICF/MR services are an optional Medicaid program. The Eleventh Circuit rejected the argument, noting that “even when a state elects to provide an optional service, that service becomes part of the state Medicaid plan and is subject to the requirements of federal law.” Id at721. (http://lw.bna.com/lw/19980317/965144.htm)"

" The Home and Community Based Waiver is OPTIONAL, NOT MANDATORY, and cannot be imposed on an individual who qualifies for and chooses an ICF/MR. In fact, the HCBS waiver will not be granted and may be revoked unless the state offers ICF/MR services to those who qualify.

The Medicaid Act provides that the Home and Community Based Service waiver “shall not be granted” to states unless the state provides satisfactory assurances that “such individuals who are determined to be likely to require the level of care provided in a hospital, nursing facility or intermediate care facility for the mentally retarded are informed of the feasible alternatives, if available under the waiver, at the choice of such individuals, to the provision of inpatient hospital, nursing facility services or services in an intermediate care facility for the mentally retarded.” 42 U.S.C. § 1396n(c)(2)(C).

CMS Regulations implementing this law stipulate that “CMS will not grant a waiver...and may terminate a waiver already granted” unless a state provides certain “satisfactory assurances” including assurances that “the recipient or his or her legal representative will be 1) Informed of any feasible alternatives available under the waiver, and 2) Given the choice of either institutional or home and community-based services.” 42 C.F.R. § 441.302(d)."

" Right to choose to remain indefinitely in ICF/MR services is protected by the Supreme Court decision in Olmstead v. L.C. “nothing in the ADA…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, 17."

The letter to the Governor concluded that ICFs/MRs "are permanent homes and rights to them are enforceable under Federal Law when: 1. the individual remains eligible and 2. the individual chooses to remain."

The letter with complete introductory information can be found on the VOR website. The above excerpts were posted with VOR's permission. Copy/paste this URL: http://www.vor.net/get-help/toolkit-for-families/ or click the title at the top of the post .