DOJ Settlement Good for People with Mental Illness, but May Leave People with I/DD Out

From The Arc of North Carolina

DOJ Settlement Good for People with Mental Illness, but May Leave People with I/DD Out

[ view at ArcNC.org ]

While it is too soon to know what the U.S. Department of Justice (DOJ) Settlement will mean for people with mental illness, now is the time to begin thinking about the effects it will have on our Mental Health/Developmental Disability/Substance Abuse (MH/DD/SA) system.

We appreciate the N.C. Department of Health and Human Services (DHHS) and DOJ finding a way to avoid costly litigation by reaching a settlement. While people can argue about the settlement’s details, there is really no question that NC’s placement of people with mental illness [and people with I/DD] in adult care homes is not appropriate. These settings were designed for people who are elderly, and are not settings where individuals who are young and have a disability will thrive. Spending large amounts of money defending a federal lawsuit would have been a true waste of taxpayer money.

The settlement does several things. The core of it requires the state to create new housing options [defined as slots]. These housing slots will include rental assistance and support services for 3,000 people, 2,000 that currently live in adult care homes, and 1,000 that are in jeopardy of being placed in adult care homes (or rest homes, as they are sometimes called) by 2020. It also requires the state to create, or increase, the availability of community services for people with mental illness including supported employment and additional Assertive Community Treatment Team services. The effort will have an independent monitor who will hold the state accountable. If the state fails to meet timelines, the DOJ can take the State to court.

One of the most disappointing parts of the Settlement is its lack of inclusion of people with developmental disabilities. Though the original complaint was about people with mental illness, there is no doubt that NC continues to rely upon similar institutional settings for people with I/DD. That people with I/DD were leftout of this settlement is concerning. Not only is the state allowed to continue its bias towards institutional settings in placements, community options made available to people with mental illness could come a the cost of community options for those with I/DD, given the State's limited resources.

Creating “scattered-site housing” is a great idea for all people with disabilities. The Arc continues to develop housing options that meet this criteria, but it is a slow process. We are also concerned that policy-makers in Washington and NC are adhering to conflicting policy in terms of housing and people with disabilities. One example is the HUD (US Dept. of Housing and Urban Development) funded properties The Arc manages for people with mental illness. Many of the properties are apartments that will not meet the scattered-site definition, yet have rental assistance vouchers as part of the project. Under the settlement agreement, very few of these properties will be available for people coming out of adult care homes. The changes that would be needed to make them available for these people currently run afoul of federal HUD regulations. We hope the DOJ and HUD will work together so future efforts will not exclude housing options promoted by federal agencies.

While the state has agreed to this promising settlement, we have significant related problems in our service system that must be addressed. One such problem is the crisis that will be created if we do not find a solution to the personal care issue. While the state will be creating community housing options for one group of individuals, others will be losing services and potentially their housing. This is not the way a system should work. While it is impressive that the General Assembly found funds to support the settlement, it should be noted that critical services are being sliced because of budget cuts at the same time.

While this settlement agreement is a step in the right direction, it is far from perfect. It does much for people with mental illness who have faced institutional bias, but at the same time it does nothing for people with I/DD facing a nearly identical problem. This is an opportunity for the leadership of the General Assembly and Administration to proactively take the spirit of this settlement and apply it to other populations. The best possible outcome is a more responsive system for all.

On Wednesday of next week the legislative Blue Ribbon Commission on Transitions to Community Living will hold its first meeting. Hopefully this committee will be the catalyst to create such change.

NC-DHHS Settlement Agreement Dox w/ US DOJ

Settlement Documents (123KB pdf)

The above link will prompt a pdf download of the full settlement documents between the North Carolina Department of Health and Human Services and the United States Department of Justice, Civil Rights Division;

Documents to include:

• Complaint for Declaratory and Injunctive Relief 
• Joint Motion to Dismiss Without Prejudice and Retain Jurisdiction
• Proposed Order
• Settlement Agreement (Exhibit A)
• Memorandum in Support of the Joint Motion

See the Press Release from Disability Rights of NC

See the DHHS Press Release via The Arc of North Carolina

Hubert H. Humphrey said, "The moral test of government is how it treats those who are in the dawn of life . . . the children; those who are in the twilight of life . . . the elderly; and those who are in the shadow of life . . . the sick . . . the needy . . . and the disabled."

On behalf of so many, THANK YOU North Carolina!! 

Disability Rights NC Applauds North Carolina’s Settlement with U.S. DOJ

From Disability Rights of North Carolina

FOR IMMEDIATE RELEASE

Thursday, August 23, 2012

[ download pdf version ]

Disability Rights NC Applauds North Carolina’s Settlement with U.S. DOJ

Raleigh – Governor Beverly Perdue took a major step today toward resolving one of the greatest challenges facing our State’s mental health system by signing a settlement agreement with the U.S. DOJ. The agreement addresses findings made July 28, 2011, that the State violates the ADA by segregating North Carolinians with mental illness in Adult Care Homes rather than allowing people the choice to live and be supported in the community.

“Disability Rights NC applauds the Governor and the Secretary Delia for their leadership. This agreement will protect the rights of people with disabilities and help the State avoid costly litigation,” said Vicki Smith, Executive Director.

The agreement provides for the creation of appropriate community mental health care, employment services and housing options for people with mental illness in our State. “This agreement will improve the lives of N.C. families – our brothers and sisters, mothers and fathers. Disability Rights NC pledges to remain vigilant, ensuring the agreement’s promise is permanent,” said Smith. “North Carolina has seized an opportunity to cultivate a robust system of care for people with mental illness which all of us can be proud of.”

Background on North Carolinians with Mental Illness Housed in Adult Care Homes

In July 2010, Disability Rights NC filed a complaint with the US DOJ alleging that the State of North Carolina is in violation of the Americans with Disabilities Act (ADA) because the State has a bias towards placing people with mental illness in Adult Care Homes (ACHs) rather than supporting them in more integrated settings in their home communities. ACHs are institutional settings that do not provide appropriate services to support recovery and meaningful community integration. Disability Rights NC alleged that the State, in relying on placements in these types of Adult Care Homes, is violating the ADA. Please see the Report: Trapped in a Fractured System - People with Mental Illness in Adult Care Homes on the website (www.disabilityrightsnc.org). Under the ADA the unjustified segregation of persons with disabilities is an illegal form of discrimination. The integration mandate allows individuals to interact with non-disabled persons to the fullest extent possible so people with disabilities are not isolated from their communities.

The US DOJ, Civil Rights Division, issued a letter of findings on July 28, 2011, concluding that North Carolina "fails to provide services to individuals with mental illness in the most integrated setting appropriate to their needs in violation of the ADA," and that "[r]eliance on unnecessary institutional settings violates the civil rights of people with disabilities." The central finding of the US DOJ is that North Carolina lacks an adequate community support system for people with mental illness. As a result, individuals are institutionalized in more expensive and more restrictive settings in Adult Care Homes. "Most people with mental illness receiving services in adult care homes could be served in more integrated settings, but are relegated indefinitely and unnecessarily to adult care homes because of systemic State actions and policies," wrote U.S. Assistant Attorney General Thomas Perez. "Reliance on unnecessary institutional settings violates the civil rights of people with disabilities.”

###

NC DHHS, US DOJ Reach Agreement on Community Based Care for Only Citizens with Serious Mental Illness

From The Arc of North Carolina

Breaking: NC DHHS, US DOJ Reach Agreement on Community Based Care for Only Citizens with Serious Mental Illness

[ view release at arcnc.org ]

Press Release from NC Dept. of Health & Human Services:

Raleigh — The North Carolina Department of Health and Human Services and the United States Department of Justice today reached an agreement on the state’s plan to offer more choices of where and how citizens with serious mental illness receive care and supportive services.

The plan, which was announced last month, will create housing slots in the community to offer the choice of community-based care for many adults with serious mental illness. It will also invest in job training and employment assistance for those citizens and will set up a comprehensive, 24/7 crisis care program for people with a serious mental illness.

This agreement will modernize our mental health system and ensure that North Carolina is providing the best possible treatment for adults diagnosed with severe mental illness. It will also provide the opportunity for many of these individuals to live in community settings if they choose to do so, and ensure that North Carolina is fully complying with the Americans with Disabilities Act and other federal laws.

This agreement is similar to ones signed by governors of a number of other states including, among others, the governors of Virginia and Georgia.

DHHS Secretary Al Delia agrees that more should be done to ensure access to community-based treatment for those with mental illness. “North Carolinians who have a serious mental illness have a right to choose the very best care environment to meet their personal needs,” he said. “That choice – whether they live in the community or in an adult care home – will be supported with access to mental health and other support services that will be available in part due to this agreement. Moving forward with a solution to help them identify and access those choices is the right thing to do,” he said.

“Disability Rights NC applauds the Governor and Secretary Delia for their leadership on this matter. They have not only done the right thing to protect the rights of people with disabilities, they have helped the state avoid costly litigation and destabilizing uncertainty,” said Vicki Smith, executive director of Disability Rights NC.

The agreement outlines DHHS’s plan of action to provide community-based services to people with mental illness. The budget the General Assembly passed in July expressly contemplated a settlement and appropriated funding to make this agreement possible. The timeline for completing the plan is eight years; this transition period will enable people who want to move to community-based settings to do so on a workable timetable and will allow sufficient time for North Carolina’s mental health infrastructure to implement this agreement.

# # #

NCGA Draft Agenda for 8/14

JOINT LEGISLATIVE OVERSIGHT COMMITTEE ON

HEALTH AND HUMAN SERVICES

(DRAFT) AGENDA

August 14, 2012
10:00 A.M. ; Room 643, Legislative Office Building
Representative Justin Burr, Co-Chair, Presiding

Introductions and Comments 10:00 – 10:15

2012 Session Overview (Budget and Substantive Laws) 10:15 - 11:00

• NCGA Staff
• DHHS Response - Al Delia, Acting Secretary and Jim Slate, Director, DHHS Budget and Analysis

Update on BC Waiver Implementation 11:00 – 12:30

• Mercer Report on Western Highlands – Michael Prinski, Principal, Mercer Government Services Consulting
• Western Highlands Response – Charlie Schoenheit
• DHHS - Status Update - Michael Watson, Director DMA and Steve Owen, Chief Business Operating Officer, DMA

Lunch 12:30

Institutes of Mental Disease, US DOJ Complaint and PCS: Status Update 1:30 - 2:10

• USDOJ – Emery Milliken, General Counsel, DHHS
• IMD – Tara Larson, Chief Clinical Operating Officer, DMA
• PCS – Tara Larson, Chief Clinical Operating Officer, DMA

Evaluation of Medicaid 2:10 – 2:40

• Division of Medical Assistance – RFP for Medicaid Evaluation
• Michael Watson, Director DMA
• State Auditor’s Office Audit of Medicaid – To Be Determined

Update on Consolidation of Leased Space for DHHS Administrative Offices 2:40 – 3:00

• Terry Hatcher, Director, Division of Property and Construction

Adjourn.

From Arc NC: Unintended Budget Cuts Must Be Fixed!

From The Arc of North Carolina

Unintended Budget Cuts Must Be Fixed!

[ view original posting ]

It’s time for the Governor and members of the General Assembly to fix the “unintended” reductions of the Social Services Block Grant (SSBG) for people with disabilities. Both legislators and the Governor’s administration seem to agree that an additional cut of $4.3 million to the community system was unintended. Unintended or not, this cut, on top of the $20 million intended reduction by the General Assembly, is causing serious harm to people with disabilities and their families.

It is hard do imagine that while the state is attempting to negotiate a settlement with the U.S. Department of Justice on ADA issues, we would allow further reductions to the fragile infrastructure of the community system. Services that allow people to live at home or in community residential settings are affected by this cut the most. Letting this “accidental” cut stand will hurt people.

The Arc, in a letter to the Governor, has asked that she take the lead on eliminating this cut. We are sending a similar letter to the House and Senate leadership asking them to join with the Governor to fix this unfortunate mistake. Hopefully, all parties will work together to do so.

Members can help by letting the Governor and General Assembly know that this cut must be restored. Let them know that our fragile community system cannot stand more reductions and that people with disabilities deserve better!

Contact:

• Governor Bev Perdue - governor.office@nc.gov (919) 733-5811
• Speaker Thom Tillis - Thom.Tillis@ncleg.net (919) 733-3451
• President Pro Tem Phil Berger - Phil.Berger@ncleg.net (919) 733-5708

news : Adult care home plan for NC under way

APNewsBreak: Adult care home plan for NC under way
By GARY D. ROBERTSON - Associated Press

[ read at News and Observer ]

RALEIGH, N.C. --

North Carolina's state health agency is moving ahead with the first step of a multi-year plan to help move potentially thousands of mentally ill residents from adult care homes to affordable housing and less restrictive living conditions.

The state Department of Health and Human Services publicized Thursday the action plan, which responds to allegations made a year ago by the U.S. Department of Justice that the state was failing to comply with the Americans with Disabilities Act. The government threatened to sue unless improvements were made.

The plan is a calculated risk for state officials because federal attorneys haven't told them whether it's enough to avoid litigation. That could require a judge-approved agreement with the federal government that may be more rigorous and expensive to carry out.

Government lawyers said in July 2011 that thousands of people with mental illness were segregated from society in adult care homes that had essentially become mental health treatment centers without giving them access to community treatment.

The plan, which will cost $10.3 million this fiscal year, will begin moving at least 100 residents with severe mental illness outside the homes to other community housing. Based on their income and ability to function, the displaced residents also will get help with paying rent, job training and potential employment.

The eight-year plan, which could cost a total of $67 million, would work to create 3,000 "slots" for people seeking a full slate of community services, acting HHS Secretary Al Delia said. The number of people that move could be much more because not everyone will need all of the offered services, Delia said.

Those who want to stay in adult care homes can remain there, he told The Associated Press.

"People will have choice," Delia said in an interview. "They will not be required to live in any one place, whether it's in a facility or in the community."

The DOJ investigation followed a July 2010 complaint by an advocacy group that found hundreds of adult care homes statewide had improper conditions and lacked trained staff, creating a dangerous environment.

The General Assembly set aside money in this year's budget to begin the transition, which has been the subject of months of talks with the Department of Justice. Delia described HHS and the federal government agreeing largely on the improvements being made.

HHS is "moving forward on implementation because we believe that it's the right policy," Delia said.

Vicki Smith with Disability Rights North Carolina, the group that leveled the 2010 complaint, said the plan sounds good on the surface but lacks a method to require the state to carry out the plan completely. Smith pointed out there's less than six months before Gov. Beverly Perdue leaves office and another administration arrives.

"Many of the people who are issuing these promises will not be around even at the end of the first year to ensure implementation," said Smith, adding that the state has fallen short of expectations in the past when it comes to mental health treatment.

"I just don't think people with mental illness can recover from another failed promise," Smith said.

The department said it still doesn't have an accurate count of the number of mentally ill residents in homes. DOJ wrote in July 2011 that 5,800 people with mental illness live at 288 adult care homes with at least 20 beds where people with mental illness comprise at least 10 percent of the population.

The action plan is one solution to deal with intertwined legal and government challenges involving North Carolina's adult care homes, whose residents include people with chronic health problems, Alzheimer's disease or mental illness. The homes don't have medically intensive services that are found in nursing homes.

The state budget also set aside another $40 million in part to provide assistance to adult care homes that aren't expected to receive some Medicaid reimbursements when a streamlined policy for personal care services goes into effect soon.

The plan's unveiling came on the 22nd anniversary of the signing of the Americans with Disabilities Act. The 2010 complaint by Disability Rights North Carolina also was filed on Thursday's date.

NC Chickens Coming Home to Roost

Tuesday's Joint Legislative Oversight Committee on Health and Human Services Meeting (May 15, 2012) focused a great deal on the Department of Justice Complaint (filed by Disability Rights of NC in 2010) and the 16-page DOJ letter of findings resulting from that Complaint. 

• View the DRNC Complaint to the DOJ; September 10, 2010.
• View the DOJ Findings Letter; July 28, 2011.
• View the agenda, materials, presentations, documents and handouts (including the DOJ Findings) from Tuesday's JLOC on HHS meeting; May 15, 2012.

The 53-page Complaint and supporting documents focused on NC's Mental Health System and the service delivery to persons with Mental Illness in Adult Care Homes and other settings across the state, alleging namely the improper placement of mentally ill persons in adult care homes and the failure to provide necessary treatment by mental health professionals as well as supports for community integration and independent living, violations of the Americans with Disabilities Act and Olmstead Act. 

It should be noted that the initial Complaint to DOJ was not news to the State of North Carolina. Here are just a few examples from the 5 page synopsis of NC's mental health care history spanning more than a decade:

• In 2001, North Carolina undertook a massive effort to reform mental health care, including the privatization of many mental health services and the creation of regional management entities that replaced local county mental health agencies. North Carolina’s State Plan 2001: A Blueprint for Change, emphasized the need to provide meaningful integrated services in accessible community settings for adults with severe and persistent mental illness. (page 4)

• In 2003, just two years following the initiation of mental health care reform, “a number of North Carolina communities were already ‘seeing increasing numbers of psychiatrists refusing to see Medicaid patients due to low reimbursement levels.’" (page 6)

• An advocacy group, NC Policy Watch, reports that nearly 1,200 people who were discharged from psychiatric hospitals ended up in homeless shelters in 2007. (page 6)

• A 2008 study commissioned by the North Carolina General Assembly magnified Disability Rights NC’s concern about Adult Care Homes and the lack of true, integrated community placements for adults with mental illness in Adult Care Homes. (page 3)

• To the detriment of community integration efforts, the N.C. General Assembly directed DHHS to eliminated Case Management as a service in 2009 as a stand-alone service to adults who receive mental health services. Some of Case Management’s functions have been absorbed into the new Community Support Team service, but where Community Support Team services are inappropriate or unavailable, Case Management services do not exist. (page 6) 

• The General Assembly’s 2010 Budget Bill instructed the Department to replace Medicaid funded community PCS with two new services: In-Home Care for Children (IHCC) and In-Home Care for Adults (IHCA). The In-Home Care services perform the same function as PCS, but the eligibility criteria for IHC are much stricter. It is estimated that more than one-half of the 37,000 current PCS recipients will not meet the eligibility criteria for IHCA and will subsequently lose the services that allow them to live in their own homes. Earlier policy changes also altered the eligibility requirements to only authorize community PCS when a person required hands-on assistance in performing an ADL. Mental capacity was no longer considered to be a factor in eligibility, but instead could only be taken into consideration after a person was found to be eligible for community PCS, and only then to allow a small increase in the total number of hours. While community PCS were drastically cut and access to the service restricted, PCS for Adult Care Home residents remained intact, essentially unaffected by budget cuts. As a result of this drastic cut in community-based services, thousands of individuals who have been living successfully in the community will be at risk of institutionalization in violation of Olmstead as they will be forced into Adult Care Homes, Assisted Living Facilities, and other non-community settings in order to obtain needed Personal Care Services. (pages 7-8)

The Department of Justice Civil Rights Division, found the adult care homes to be "Segregated, Institutional Settings"... and from their I. Summary of Findings (pages 1-3):

We conclude that the State fails to provide services to individuals with mental illness in the most integrated setting appropriate to their needs in violation of the ADA. The State plans, structures, and administers its mental health service system to deliver services to thousands of persons with mental illness in large, segregated adult care homes, and to allocate funding to serve individuals in adult care homes rather than in integrated settings. Adult care homes are institutional settings that segregate residents from the community and impede residents' interactions with people who do not have disabilities. Most people with mental illness receiving services in adult care homes could be served in more integrated settings, but are relegated indefinitely and unnecessarily to adult care homes because of systemic State actions and policies, which include:

• The State's failure to develop a sufficient quantity of community-based alternatives for individuals with mental illness unnecessarily and indefinitely confined to adult care homes;

• The State's failure to redirect resources already available to expand community-based alternatives;

• The State's prioritization of investment in institutional settings at the expense of community-based settings; and

• The use of policies and practices that cause individuals with mental illness to enter adult care homes to obtain support services. 

Our findings are consistent with the following conclusions made in several State-issued and State-funded reports:

• Adult care homes "are not optimal for community integration" and "[r]esidents of 
ACHs may be cut off from active participation in the local community.

• Adult care homes are "highly likely to qualify as restricted settings'

• There is an "institutional bias" in North Carolina: "People who enter an ACH or  other type of facility can obtain certain financial assistance, services, and supports that are not equally available to people with similar levels of disability and financial need who choose to remain in their own homes'

• "[M]any with mental illnesses continue to live in long term care settings because  there are not yet more appropriate alternatives available to them in their communities'", Adult care homes are not the most appropriate setting for people with mental illness because they are not designed to provide services to allow people with mental illness to achieve greater independence.' and

• Supportive housing promotes community integration and achieves "positive  impacts in terms of cost-effectiveness and improvement in quality of life, housing stability and health and behavioral outcomes for people with mental illnesses, developmental disabilities and substance abuse disorders.

We agree with these conclusions and observations. Reliance on unnecessary institutional settings violates the civil rights of people with disabilities. Community integration will permit the State to support people with disabilities in settings appropriate to their needs in a cost effective manner.

It's not necessarily a matter of the State seeing the error of their ways after 10 or 15 years however, but rather the year-long negotiations with the US DOJ and the knowledge of numerous other states who have also been investigated for similar ADA and Olmstead violations and the financial consequences they are now facing, like New Jersey's 2009 5-year court order for $752 million annually or Georgia's $685 million annual required payment to the federal government, Texas at $464 million, and Virginia, who entered into a total settlement of $2.1 million.

Bottom line: money talks... especially if it's due to come out of your pocket book.

Durring DOJ update portion of the JLOC meeting by DHHS General Council, Emery Millikin, Senator Tommy Tucker  asked if NC had just been sweeping this problem under the rug for 10 or 15 years and "now the chickens have come home to roost?" Attorney Millikin denied any under-rug-sweeping, though did acknowledge, that the chickens of North Carolina have indeed come home to roost.

*I'll be explaining more about what this means to DD families and how this is due to affect our children as Medicaid recipients...