SR136

A Senate Resolution urging the revision of the Statewide Transition Plan for home and community-based services.

Whereas, In January 2014 the Centers for Medicare & Medicaid Services (CMS) issued federal Home and Community Based Settings regulations (42 CFR 441.301, 42 CFR 441.710, 42 CFR 441.530), which incorporated amendments as part of the Affordable Care Act and other regulatory changes to ensure that Medicaid’s home and community-based services (HCBS) programs provide full access to the benefits of community living and offer services in the most integrated settings; and

Whereas, According to CMS, the regulations, also referred to as the HCBS settings rule, advance HCBS quality and are intended to assure that states receiving Medicaid funds meet the needs of individuals who choose to receive their long term services and supports in their home and community, rather than in institutional settings; and

Whereas, The Department of Human Services (DHS) released a draft Statewide Transition Plan (plan) describing how the State will ensure that the NJ1115 Comprehensive Waiver Demonstration (NJCW) and the 1915(c) Community Care Waiver (CCW) are in compliance with the HCBS settings rule; and

Whereas, The draft plan proposed several new requirements on programs and generated over 1,000 comments in the month after its release. Some of the more controversial proposals were: residential settings (such as supervised apartments or group homes) may serve no more than four people, or six under certain circumstances; individuals who attend daily work or recreational programs must spend three-quarters of the day outside facilities which are dedicated to individuals with disabilities; no more than 25 percent of housing units in non-congregate residential settings may be set aside for persons with disabilities; residential and day programming may not be co-located, and self-directed day services may not be based at the same site in which individuals live; and housing will be a separate service and be facilitated by the Supportive Housing Connection, a partnership between DHS and the Housing and Mortgage Finance Agency; and

Whereas, After receiving the extensive public feedback on the plan, the department submitted a revised final plan to CMS on April 17, 2015. The final plan incorporated many changes in response to the public comments and the final plan is intended to enable the vast majority of current HCBS to continue unchanged; however, the community still has concerns with the final plan; and

Whereas, The final plan contains the following requirements which individuals with disabilities contend limit their choices, such as: new residential settings must be limited to four persons, or six with special approval; no more than 25 percent of units in a non-congregate residential setting may be specifically set aside for individuals with disabilities; and residential and day programming may not be co-located, and self directed day services may not be based at the same site in which individuals live; and

Whereas, To provide the most choice and opportunities to individuals who receive services through the CCW and the NJCW, it is essential that the final plan is revised to align with CMS’s goal to provide full access to the benefits of community living and offer services in the most integrated settings in a manner that reflects individuals’ preferences and goals; and

Whereas, The plan should be amended to remove the limitations on the numbers of individuals who reside in a residential setting. These artificial limits will remove opportunities for persons with disabilities to choose alternate housing arrangements such as community living in an agricultural cooperative, as are provided through farmsteads. These restrictions will also be problematic for individuals with complex medical needs who may benefit from a larger setting in which they will have the ability to access all of the medical services they need in one place; and

Whereas, The plan should also be amended to remove the strict 25 percent density rule on new non-congregate residential settings, as it is contrary to the belief that individuals with disabilities can choose their own living arrangements and whom they want as their neighbors in their communities. The State should not be establishing quotas for living arrangements for individuals with disabilities; and

Whereas, The restriction on individuals participating in day programming at the same site at which they reside limits the ability of certain intentional communities, such as farmsteads, from providing the type of day activities the individual chooses. The prohibition against residential and day programming being co-located should be removed from the final plan; and

Whereas, The United States Supreme Court decision in Olmstead v. L.C. 527 U.S. 581 (1999) recognized that individuals with disabilities have the right to choose where they live, and concluded that states “are required to provide community-based treatment for persons with mental disabilities when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities”; and

Whereas, The final plan does not incorporate the ability of individuals with disabilities to oppose the restrictions on housing options as the State has established them. Each individual with a disability should be given the choice in how to live, whom to live with, and where to live; now, therefore,

Be It Resolved by the Senate of the State of New Jersey:

1. The Centers for Medicare & Medicaid Services is respectfully urged to work with the Department of Human Services to amend the Statewide Transition Plan to remove the quotas and limitations on residential settings to allow individuals with disabilities to exercise their rights to choose the setting that best fits with their individual needs and preferences.

2. The Department of Human Services is respectfully urged to work with the Centers for Medicare & Medicaid Services to revise the Statewide Transition Plan to remove the quotas and limitations on residential settings to allow individuals with disabilities to exercise their rights to choose the setting that best fits with their individual needs and preferences.

3. Copies of this resolution, as filed with the Secretary of State, shall be transmitted by the Secretary of the Senate to the Governor of New Jersey, the Commissioner of Human Services, and to the Secretary of Health and Human Services.

STATEMENT

This resolution urges the Centers for Medicare & Medicaid Services (CMS) to work with the Department of Human Services to revise and resubmit the Statewide Transition Plan, which was submitted to CMS on April 17, 2015.

The Statewide Transition Plan (plan) describes how New Jersey will ensure that the NJ1115 Comprehensive Waiver Demonstration (NJCW) and the 1915(c) Community Care Waiver (CCW) are in compliance with the federal home and community-based setting regulations (42 CFR 441.301, 42 CFR 441.710, 42 CFR 441.530).

The sponsor is concerned that the plan contains requirements which limit individuals with disabilities from choosing where and with whom they want to live. For example, the plan includes the following provisions which limit the individual’s ability to make a choice on what living arrangement is best: new residential settings must be limited to four persons, or six with special approval; no more than 25 percent of units in a non-congregate residential setting may be specifically set aside for individuals with disabilities; and residential and day programming may not be co-located, and self-directed day services may not be based at the same site in which individuals live.

These limitations and requirements must be removed from the plan to provide the most choice and opportunities to individuals who receive services through the CCW and the NJCW. These limitations do not align with CMS’s goal to provide full access to the benefits of community living and offer services in the most integrated settings which can be achieved. The plan should be amended to remove the limitations on the numbers of individuals who reside in a residential setting. The State should not provide quotas on the percentage of individuals who can reside in one housing area, and the strict 25 percent density rule on new non-congregate residential settings should be removed from the plan. Additionally, the prohibition against residential and day programming being co-located should be removed from the final plan.

These restrictions are contrary to the belief that individuals with disabilities can choose their own living arrangements and whom they want as their neighbors in their communities. The restrictions on choice of living arrangements and day programming for individuals with disabilities will result in individuals being unable to choose such alternate housing arrangements as community living in an agricultural cooperative, as are provided through farmsteads, or larger settings where people have the ability to access all of the services they need in one place.

The current plan does not incorporate the ability of individuals with disabilities to select their own residential settings and should be amended.