Access: The TAC Blog
The Trump administration’s interest in addressing the opioid epidemic is heartening, and last week's proclamation is a welcome acknowledgment that opioid addiction and overdoses do indeed constitute a major public health crisis in our nation. While there is no immediate prospect of a significant cash infusion (millions are touted, versus the badly needed billions) to address the crisis, there has at least been the promise of statutory and regulatory relief — with a particular focus on allowing states to waive the Institutions for Mental Diseases exclusion. This 52-year-old statute bars Medicaid payments for mental health and addiction treatment provided to individuals in large treatment facilities, and some advocates assert that waiving it will allow Medicaid funds to flow for thousands of substance use disorder (SUD) treatment beds that currently lie empty.
All efforts to expand access to treatment are important, but the push to open up large facilities for SUD care as the first priority should be kept in perspective. Empty beds in such institutions may be the result of many causes. For instance, a community with a strong array of community-based treatment options may not need additional beds. In some cases, beds go unused if private payers don't refer patients to a facility because it lacks a modern, evidence-based approach to treating addiction (for instance, if no-one on staff is qualified to provide medication-assisted treatment). And finally, some facilities have never participated in either Medicaid or commercial insurance programs simply because they don’t have to, as their private fee structure allows them to maintain empty beds; these providers may have neither the financial motivation nor the business operations know-how to bill insurers, or to train their staff to meet the quality standards of states and commercial payers.
So, states — before you rush off to the Centers for Medicare and Medicaid Services asking for IMD waivers, make sure your request is going to make a true difference in getting people high-quality care. We won’t turn this crisis around by assuming that any treatment is better than no treatment.
DEPENDING ON WHOM YOU ASK, an Olmstead settlement agreement can be a blessing or a curse. While the parties typically agree on the principle affirmed by the U.S. Supreme Court — that people with disabilities should live in the most integrated setting possible — costly housing markets and complex service delivery systems are formidable barriers to this goal. More than 15 years after the Supreme Court's landmark Olmstead decision, states still struggle to serve people with disabilities in integrated settings.
Delaware and New Jersey are two states that have recently resolved their Olmstead settlements, achieving significant reforms though years of dedicated effort — Delaware's settlement was originally signed in 2011 with the U.S. Department of Justice, while New Jersey's was signed in 2009 with Disability Rights New Jersey and the Bazelon Center for Mental Health Law.
Thanks to the successes of these states in substantially attaining the outcomes required by their agreements, thousands of people with serious mental illness now have the opportunity to live in integrated community settings. What is perhaps most impressive is that a substantial part of the system reform accomplished by New Jersey and Delaware occurred during the great recession (2007 to 2009) and the following period of slow economic recovery.
Delaware and New Jersey both offer good examples of what is possible when states focus on community integration for people with mental illness and other disabilities.
A U.S. Department of Justice press release describes some of Delaware’s most significant gains. The state reduced the number of bed days in the Delaware Psychiatric Center by 47.2 percent. The number of Medicaid-eligible Delawareans receiving community-based services has increased by 92 percent since the United States began its investigation. The state has seen the growth of a strong peer and self-advocacy movement that is now incorporated into its entire service system. Two statewide mobile crisis teams and a crisis walk-in center divert 70 to 90 percent of the individuals they engage away from hospitalization and criminal justice interaction and toward community-based services.
As a press release from Bazelon details, New Jersey’s settlement also brought about important changes. Between 2005 and 2016, New Jersey invested nearly $104 million in services and rental assistance for Olmstead-related activities. The state also established a $200 million special needs housing trust fund, and created nearly 1,500 new permanent supportive housing units through capital and rental assistance. New Jersey’s state psychiatric hospital census was reduced by a third, patients’ average length of stay went down, and one state hospital was closed — changes that allowed state hospital operating funds to be reinvested in community supports. New Jersey created a Medicaid benefit to fund community support services for residents of supportive housing, and leveraged additional Medicaid money with investments in community-based services.
Both Delaware and New Jersey used their Olmstead settlement agreements as a driver for change, embracing a community integration platform to guide them toward significant behavioral health system reform. These states recognized that without sustainable system reform and new resources, counting numbers to achieve settlement targets wouldn’t bring about the changes needed to serve people with serious mental illness effectively.
Commitment to Olmstead in a Changing Landscape
Across the country, Olmstead stakeholders are raising questions about the future of community integration for people with serious mental illness and other disabilities. Doubt surrounds the capacity and motivation of states to tackle Olmstead in the years ahead; the commitment of the Department of Justice to focus on Olmstead as strongly as it has in the past; and the ability of protection and advocacy organizations to hold states accountable.
Changes to the Medicaid landscape at the federal level could put at risk the types of benefits coverage that makes community integration work for people with disabilities. Looming cuts to non-mandatory discretionary budgets, such as HUD housing assistance programs, may further jeopardize the ability of states to support community integration.
The Department of Justice has been instrumental in the movement toward community integration, enforcing Olmstead by leading investigations, entering into settlement agreements in several states, and intervening in support of class actions. If the Department shifts its attention to other priorities established by the Trump administration, individuals with serious mental illness and other disabilities will be left without civil rights enforcement at the very time when loss of benefits could place them at greater risk of institutionalization. Many state protection and advocacy agencies, as well as legal services organizations, have the authority to bring class action lawsuits on behalf of people with disabilities, and these groups may be called upon to step up their efforts.
Complying with Olmstead will become increasingly difficult if federal policy and budgetary changes reduce support to states in the near future. Federal cuts currently under consideration would put people with mental illness and other disabilities at greater risk of institutionalization and homelessness due to thinner benefits and services and reductions to the rental assistance that can make housing affordable. Our February blog post on budget impacts explained the challenges states will face in making resources available to meet federal requirements. Nevertheless, it is states that are on the hook to ensure that individuals are served in integrated settings.
Community integration mandates in the Olmstead decision, Title II of the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act are still the law, regardless of fluctuations in federal enforcement and support. Furthermore, serving individuals with disabilities in integrated, community-based settings is good, cost-effective policy. With these facts in mind, states should continue to design and implement Olmstead plans that build sustainable, system-wide improvements. The benefits — to individuals, communities, and all who recognize the value of true integration — are well worth the challenges.