Photo Credit: livestrong.com

Part I
​
Federal Olmstead Housing Obligations on States
Why a nursing home is often not an option for Some people with cognitive disability


Olmstead: Federal Obligation on States

The clearest legal duty on states to provide HOUSING for people with disabilities is under Federal ADA/OLMSTEAD law, legal decisions and guidance.  The duty to provide HOUSING is limited to:
  • people with disabilities who are institutionalized
  • people with disabilities who are homeless, and/or
  • people with disabilities who are at great risk of institutionalization or homelessness.

Federal Medicaid Treatment of Nursing Homes & Housing
  • Medicaid does not cover room and board for nursing homes or housing.  Room and board is typically held at the SSI rate.
​
  • For many people with cognitive disabilities a failure to provide housing not only fails to provide the least restrictive environment -- it also fails to provide any environment outside the Streets or the Jail Cell because many nursing homes refuse people with cognitive disabilities coming from incarceration. ​​

It could be very helpful for:
  • National Legal Support Centers for the Homeless and People with Disabilities
  • to Coordinate with
    • National Law Firms,
    • Protection & Advocacy Agencies and
    • Homeless Entities
    • Etc.
​
To Pursue:​
  • Olmstead Objectives in General and HOUSING specifically

Part 2

Nursing Homes & Housing Under Medicaid

Nursing Homes
  • Mandatory Medicaid Service:
  • States MUST provide nursing home care to all where reasonably medically necessary
  • Institutional Care
  • States often fail to enforce FAIR HOUSING LAWS to ensure people with cognitive disabilities have access to nursing home care.

Housing
  • Housing is NOT covered under Medicaid even for people who qualify for Medicaid long term care
  • Why is that important?
    • The argument for Medicaid Coverage of Housing, or some kind of government coverage for Housing is greatest for people needing long term care.​
  • The Medicaid concern for the legal obligation of "least restrictive environment" is rendered ABSURD when people with cognitive disabilities can access NEITHER:
    • ​Nursing Homes (nor assisted living residences), nor
    • Housing
  • Medicaid is willing to cover "housing related services"
  • CMS has reminded States that States do have a duty to provide Housing for people with disabilities under Olmstead
  • The Medicaid policies on Housing discriminate against people with disabilities, especially those with cognitive disabilities who often don't have access to even the restrictive environment of the nursing home. 
Picture
By Erwin Wurm

Part 3
​
Bed Space, Parity and Medicaid Network Adequacy

         Medicaid has granted various exceptions to the IMD Exclusion Rule and Medicaid seems poised to eliminate the rule.
          The IMD Rule was intended to encourage States to build small facilities for individuals with mental illness.  A few examples of that were built in Colorado and other States -- but far, far from scale.
           We generally consider hospital level care -- Mandatory under Medicaid.
            To a certain extent disincentives for-- ECONOMIES of SCALE -- are what are preventing adequate bed space.
             EXCEPT:  it is anything but clear that Medicaid is going to administratively enforce Parity and Network Adequacy for mental health hospital bed space and other intensive services.
              Theoretically, if States were complying with the law, we wouldn't have a mental health crisis.  Colorado and most states are not complying.
              The dissention within the Mental Health Advocacy Community and a Society at Large has dug an enormous hole for:
  • Mental Health Patients
  • Family Members
  • Law Enforcement
  • and the Society At Large
               It has also created an attitude that mental health placements and services are OPTIONAL.
               So this gets to how Colorado and other states have funded Mental Health Continuum of Care Hells -- full access to therapy but failure to provide secure and non-secure placements and intensive services to SCALE.
               Maybe it's not that surprising that we swung from almost total institutional care and a failure to build new placements.
                We must get Mental Health off the political rollercoaster.
                 We need clear, objective standards at each level of care -- including housing for people needing long term care.  We need the data of the number of people who meet each level of care, and provide those services and placements.
Mysterious Big Hole

Part 4
​
Medicaid and a comprehensive mental health continuum of care


​Mandatory & Optional Medicaid Benefits

This page outlines mandatory Medicaid benefits, which states are required to provide under federal law, and optional benefits that states may cover if they choose.

Mandatory Benefits
  • Inpatient hospital services
  • Outpatient hospital services
  • EPSDT: Early and Periodic Screening, Diagnostic, and Treatment Services
  • Nursing Facility Services
  • Home health services
  • Physician services
  • Rural health clinic services
  • Federally qualified health center services
  • Laboratory and X-ray services
  • Family planning services
  • Nurse Midwife services
  • Certified Pediatric and Family Nurse Practitioner services
  • Freestanding Birth Center services (when licensed or otherwise recognized by the state)
  • Transportation to medical care
  • Tobacco cessation counseling for pregnant women

Optional Benefits
  • Prescription Drugs
  • Clinic services
  • Physical therapy
  • Occupational therapy
  • Speech, hearing and language disorder services
  • Respiratory care services
  • Other diagnostic, screening, preventive and rehabilitative services
  • Podiatry services
  • Optometry services
  • Dental Services
  • Dentures
  • Prosthetics
  • Eyeglasses
  • Chiropractic services
  • Other practitioner services
  • Private duty nursing services
  • Personal Care
  • Hospice
  • Case management
  • Services for Individuals Age 65 or Older in an Institution for Mental Disease (IMD)
  • Services in an intermediate care facility for Individuals with Intellectual Disability
  • State Plan Home and Community Based Services- 1915(i)
  • Self-Directed Personal Assistance Services- 1915(j)
  • Community First Choice Option- 1915(k)
  • TB Related Services
  • Inpatient psychiatric services for individuals under age 21
  • Other services approved by the Secretary*
  • Health Homes for Enrollees with Chronic Conditions – Section 1945
*This includes services furnished in a religious nonmedical health care institution, emergency hospital services by a non-Medicare certified hospital, and critical access hospital (CAH).

There are a lot of bad things going in this array of services.

Some of those bad things are:
  • No clear, comprehensive mental health continuum of care (although inpatient hospital services should include mental health hospital services -- that IMD Rule is discriminatory)
  • No clear funding for a clear, comprehensive mental health continuum of care

Concerns regarding:
  • Parity
  • Section 504 of the Rehabilitation Act of 1970 (Medicaid is a Federal Program)
  • The Americans with Disabilities Act, Title II (Medicaid is a Federal Program that is implemented on a State Basis.
  • Theoretically, states could cobble together a Comprehensive Mental Health Continuum of Care --but States have tended to fund illustrative examples, rather than a thoroughly integrated system of care with sufficient resources at each level.

It is the COMPREHENSIVE CONTINUUM OF CARE that is needed to address the Mental Health Crisis.