Steve Gold, The Disability Odyssey continues

In July 2007, we wrote "Isn't Twenty Years Enough Time - MR/DD and Nursing Facilities?" [See Information Bulletin #219]. We pointed out that in 2007 there were about 33,000 people with a MR/DD diagnosis who resided in nursing facilities. We reviewed Congress' mandates in the 1987 Medicaid Nursing Home Reform Act, including the requirements to identify and provide specialized services for these 33,000 people.

We also broke down the 33,000 and provided by State the number of persons who have a MR/DD diagnosis, but were nevertheless in a nursing facility.

When "Twenty Years" was written, we were not aware that the Office of Inspector General, in the United States Department of Health and Human Services had recently issued a report entitled "Preadmission Screening and Resident Review for Younger Nursing Facility Residents with Mental Retardation." [#OEI-07-05-00230]

The OIG noted that Congress in 1987 had "mandated preadmission screening for individuals suspected of having ... mental retardation to ensure that: (1) nursing facilities admit only individuals needing nursing facility care, (2) these individuals' needs for specialized services are determined, and (3) these individuals obtain the services identified though the preadmission screening. The PASSRR is the primary mechanism used to meet these objectives."

The "intent of the PASRR is to ensure that individuals with mental retardation are appropriately screened, thoroughly evaluated, and placed in nursing facilities when appropriate, and that they receive all necessary services" for their Mental Retardation.

The OIG's findings are devastating.

First, even though everyone who applies to a Medicaid nursing facility is supposed to receive a "Level I PASRR screen to identify suspected mental retardation," far from everyone received a Level I screen and, of those people who did receive a screen, "one fourth were not completed ... prior to or on the date of admission." Of those done late, on average they were completed 40 days after the resident was admitted.

So much for diverting people with MR/DD from inappropriate institutionalization!

Second, more than half the persons "suspected" of having mental retardation did not have either a Level II evaluation or Level II determination. It's at the Level II evaluation stage that suspected MR/DD is confirmed and a determination made whether the applicant requires specialized services and requires nursing facility services.

One state had no Level II evaluations. Of the half where a Level II was completed, many were not completed prior to or on the date of admission.

So much for States "determining whether an individual with mental retardation requires a nursing facility level of services and whether specialized services are needed."

Third, despite the OIG's recognition that the Supreme Court in Olmstead held that "the treatment, services and habilitation for a person with developmental disabilities ... should be provided in the setting that is least restrictive of the person's personal liberty'," nearly a quarter of the Level II evaluations contained no "evidence that the evaluator assessed whether the individual's total needs could be met in a community setting."

So much for the Olmstead decision providing protections for unnecessary institutionalization.

If the Level II evaluations had been done correctly, OIG noted that Medicaid's waiver program services should have been considered as appropriate placement!!!!

Since every State has a MR/DD Medicaid waiver program, which serves the mirror image of the 33,000 people with MR/DD in nursing facilities, why are these people still inappropriately in nursing facilities?

OIG stated that "If an individual's needs can be met in the community, then nursing facility services are not needed"!!!!! While that is not rocket science and something disability advocates have been stating for the last nine years, at least, it's still great that OIG stated it.

Is there any State where disability advocates think that their folks' (with MR/DD in a nursing facility) needs cannot be met in the community? That nursing facilities are needed for them?

Fourth, OIG stated there was at most limited oversight of preadmission screening processes at both the Federal and State levels. Only one of the States which OIG evaluated "reported specific oversight practices aimed at ensuring compliance with PASRR."

So the States are not in compliance with federal regulations for having a tracking system. But it's not just the States. CMS, the federal funding agency, also does not conduct reviews of the States' PASRR compliance.

So obviously the States know they can get away with violating Olmstead, the Medicaid Nursing Home Reform Act, and mandatory federal regulations. No consequences. Great scam! Only people with disabilities get injured.

Most of the OIG's recommendations were quite lite, e.g., "CMS hold State Medicaid agencies accountable for ensuring compliance with Federal requirements."

Wow, that's a novel suggestion.

However, there was one OIG recommendation that disability advocates should use in your State. OIG recommended that "CMS hold States accountable for considering community placements during the Level II PASRR process." If that were really done, we would not have 33,000 people with MR/DD in nursing facilities.

Let's try to give some teeth to this last OIG recommendation. Disability advocates could file administrative complaints against both your State and CMS for violating Section 504 and the ADA, if they do not appropriately consider community placements. You could file litigation because the people in your State in nursing facilities could and should be in the community.

We all know that nursing facilities do not and cannot provide "habilitation" services that persons with MR/DD need. It's really an outrage that there is anyone with a MR/DD diagnosis still in a nursing facility. They should all be in a waiver program in the community!