HCBS Reductions? What Advocates Can Do.

HCBS Reductions? What Advocates Can Do. Information Bulletin # 324 (9/2010).

Has your State threatened to cut back or reduce Medicaid-funded home and community-based services ? Has your State actually reduced HCBS Medicaid services? What impact will these reductions have on people remaining in the community?

What can advocates do about these reductions? What should CMS do?

In addition to how the ADA and integration will be impacted if the reductions are implemented, another handle is the Medicaid statute itself?

To receive federal Medicaid funds, a State must have a written state plan that has been submitted to and approved by the Secretary of the U.S. Dept of Health and Human Services. CMS posts state MA plans and amendments at www.cms.gov/medicaid/stateplans/

State MA plans must be amended to reflect changes in federal policy, Court decisions, and “material changes” in policy, state law, or operation of the program. 42 Code of Federal Regulations § 430.12. Proposed State plan amendments must be submitted to the CMS regional office which must “consult with central office staff on questions regarding application of Federal policy.” 42 C.F.R § 430.14. CMS must make a “determination as to whether State plans (including plan amendments and administrative practice under the plans) originally meet or continue to meet the requirements for approval are based on relevant Federal statutes [including the ADA] and regulations.” 42 C.F.R § 430.15.

Hmmm. The United States Supreme Court in 1999 in the Olmstead decision found that unnecessary segregation in institutions violated the ADA - sure sounds like a Court decision. CMS has issued several “Dear State Medicaid Director” letters telling states that their State plans must comply with both the Medicaid and the ADA statutes, and these letters sure look like federal policy.
Therefore, when your State proposes reductions in HCBS, advocates must analyze what impact the reductions will have on causing or preventing unnecessary segregation. Advocates must ensure that CMS will disapprove the amendments based on Olmstead and its own policy requiring compliance with the ADA.

Advocates for older and younger Americans with disabilities should:

1. Find out if your Governor has reviewed the proposed amendments, a Medicaid requirement for State plan amendments?
2. Contact your regional CMS officials and obtain copies of documents between your State and CMS regarding the amendment.
3. Unbelievably, there is no requirement for public hearing or even an opportunity for public comment. Nevertheless, each State has a Medical Care Advisory Committee that reviews and comments on proposed changes. Get to them and make your voices heard.
4. Send your comments to the CMS regional office AND to the Secretary of HHS. Tell them how the amendments will impact on people unnecessarily being institutionalized.

Thanks very much to the National Health Law Program for their invaluable suggestions and observations, many of which are the basis for and incorporated in this Information Bulletin.

Steve Gold, The Disability Odyssey continues

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