I thank all the families that have submitted comments to the Department of Developmental Disabilities regarding its Draft Information Bulletin on receiving health care and other services in the community. It is extremely important that the Department understand the impact its proposed policy would have on our family members. The Medical Director at Misericordia, Dr. Chicoine, also submitted an excellent comment, providing the Department with the perspective of an expert in providing health care services to individuals with developmental disabilities. You can read his comment by
It is also important to understand the legal basis for our objections to the draft Information Bulletin. These objections were included in Sister Rosemary’s comments to the Department. We have heard that the Bulletin was prompted by the mistaken belief that it is required by CMS’s HCBS rule. In fact, in numerous places the CMS rule makes it clear that the individual has the right to choose from whom he or she receives services and where. There is absolutely nothing in the CMS rule that prohibits individuals from receiving services from his or her residential provider. CMS expressly declined to adopt such a prohibition.
In describing what constitutes a community based setting, the CMS rule provides that the setting must “facilitate individual choice regarding services and supports and who provides them.” Facilitating individual choice is also highlighted in other sections of the Rule. For example, in setting out the requirements for person-centered planning the rule states that the process must “offer informed choices to the individual regarding the services and supports they receive and from whom.” The only obligation the Rule imposes on residential providers is to ensure that the individual has “opportunities to . . . receive services in the community.” Therefore, under the CMS rule, if the individual chooses to receive services in the community, the provider must support that choice. However, if the individual (or his or her legal guardian) chooses to receive services from the provider, the Rule respects that choice.
CMS also published commentary on its rules. That commentary included this very important paragraph as it relates to individuals being required to receive services in the community:
“Upon consideration of the thoughtful comments submitted, we [CMS] are not requiring the separation of the housing provider from the provider of HCBS. Commenters provided compelling arguments both in support and against the proposed prohibition. We recognize that the needs of the individuals receiving HCBS vary greatly. Just as there should be a variety of service options to meet those needs, there should be a variety of residential options as well. We agree with commenters that the issue of choice regarding the provision of services can be addressed as part of the person-centered planning process and reflected in the individual's person-centered service plan. States must ensure that when an individual chooses a home and community based setting, the individual has made an informed choice among options. In the event the individual has made an informed choice to reside in a setting that provides both housing and services, the individual must acknowledge that he has also chosen that provider to be the service provider. Our decision not to require the separation of housing and services in the final rule does not preclude a state from structuring its service delivery system to promote separation. Nor does it preclude a provider from allowing for such an arrangement if all parties agree, and the arrangement does not violate state licensing requirements. At this time, we do not believe that there should be a federal mandate requiring such a separation.”
The above quote shows that CMS recognizes that the needs of individuals with developmental disabilities vary greatly. Therefore, rather than the government dictating the service providers an individual may or may not use, that choice is left to the individual to be reflected in the individual’s person-centered plan.
Not only does the CMS position make good sense, it is also consistent with the Americans with Disabilities Act and the Supreme Court’s decision in Olmstead. Both the ADA and Olmstead give precedence to individual choice. The ADA makes clear that no individual with a disability may be required to accept an accommodation. Olmstead holds that an individual may be served in the community only if he or she does not object.
Of course, as the above quote from CMS indicates, the States are free to adopt more stringent requirements. However, particularly in this case, that would be bad public policy because of the harm it would cause our family members. That is why our comments to the Department explaining the impact on our loved ones are so important.
If you would like more information on this issue, please feel free to contact me at This email address is being protected from spambots. You need JavaScript enabled to view it.
Scott