States urged to implement ACA to end Medicaid's bias towards funding long-term care in institutional settings

National Senior Citizens Law CenterSep 29 2010

In recognition of the six month anniversary of the health reform law, a new report from the National Senior Citizens Law Center, with support from The SCAN Foundation, calls on states to use the implementation of the Affordable Care Act (ACA) to end Medicaid's long-standing bias toward funding long-term care in institutional settings such as nursing homes.

The report, "10 Plus Years Since the Olmstead Ruling: Progress, Problems and Opportunities," describes steps forward and problems encountered since the landmark Supreme Court Olmstead ruling in 1999.  In that ruling, the Court held that the unjustified isolation of people with disabilities in institutions is a form of unlawful discrimination under the Americans with Disabilities Act.

"The true message from the Olmstead ruling is that we need to create a long-term care system that is less reliant on keeping someone in a nursing home," says NSCLC Executive Director Paul Nathanson. "The implementation of the health reform law provides a unique opportunity to ensure that many more low income older adults receive long-term care in their homes and communities where they prefer to be."

In defining problems, the report quotes the health reform law: "Despite the... Olmstead decision, the long-term care to our Nation's elderly has not improved." In fact, for many, it has gotten far worse." It goes on to say that while every state has chosen to provide home and community based services (HCBS) under the Medicaid waiver program, services provided are "unevenly available within and across States" and are not reaching many people.

The report calls on states to participate in expanded HCBS options that are part of the health reform law. Examples include the Money Follows the Person program, which the ACA amended to make it more accessible. Financial incentives are also available through the State Balancing Incentive Payments Program. It also suggests that both the federal and state governments improve the quality of care and for Congress to emphasize HCBS in the 2011 reauthorization of the Older Americans Act.

Since the ruling, according to the report, progress has been made. Many individuals have successfully transitioned from nursing homes to community settings, but waiting lists for community services have grown considerably.  As a result, many people have been unable to obtain the care and services they desire. The report also maintains that the ruling, which has been the basis of many legal efforts to compel states to expand HCBS offerings for older Americans, sets the stage for increased emphasis on the use of HCBS nationwide.

"The Olmstead ruling was vital because it changed both law and practice," said Bruce Chernof, MD, president and CEO of The SCAN Foundation. "Improving our system of home- and community-based care for vulnerable seniors is a tremendous step towards allowing Americans to age how they want and where they want."

The report concludes that increased use of HCBS would bring more dignity and independence to the lives of persons requiring LTSS, and has great potential to reduce federal and state costs as well.