ANCOR’S STATE SHARE REPORT
(UPDATED)
April 7, 2004
State Share is part of ANCOR’s ongoing environmental scan process. This information can be of help to members in their own planning processes as well. Activities in one state often find their way into others. It is useful to have information about potential problems—and their solutions—in advance.
These narratives were developed for State Share by ANCOR’s state representatives, state association executives and regional directors for use at the March 14-16, 2004 Management Practices Conference held in New Orleans, Louisiana. It is important to remember that the focus of each report is based on the perspective of the individuals who report for the state. ANCOR does not research the accuracy of information contained in these reports.
Table of Contents
Regional DirectorsPage 1
Board of Representatives LiaisonsPage 1
State RepresentativesPage 1
Key to Grid QuestionsPage 2
Key to Grid SymbolsPage 2
Key to Report QuestionsPage 2
Comprehensive National Summary GridPage 4
Comprehensive National Summary Grid NarrativesPage 6
Supplemental Environmental ScanPage 19
State Background Information Provided by Certain StatesPage 30
REGIONAL DIRECTORS
GREAT LAKES/EAST REGIONCarol Mitchell
GREAT LAKES/WEST REGIONTom Lewins
MID-ATLANTIC REGIONWilliam Loyd
NORTH CENTRAL REGIONWayne Larson
NORTHEAST REGIONRichard Carman
NORTHWEST REGIONEmily Ennis
SOUTH CENTRAL REGIONLisa Toth-La Tray
SOUTHEAST REGIONBernard Wagner
SOUTHWEST REGIONWendy Sokol
BOARD OF REPRESENTATIVES LIAISON
Tom Daniels
STATE REPRESENTATIVES
ALABAMA – VACANT
ALASKA – Steve Lesko
ARIZONA – Jake Carls
ARKANSAS – Jackie Fliss
CALIFORNIA - Ronald Cohen
COLORADO - John Taylor
CONNECTICUT - Janice Chamberlain
DELAWARE - VACANT
DISTRICT OF COLUMBIA - VACANT
FLORIDA - Joseph Aniello
GEORGIA – Janet Deal
HAWAII – VACANT
IDAHO – Jennifer Ramon
ILLINOIS – Robert Okazaki
INDIANA - Mark Draves
IOWA - Tom Daniels
KANSAS - Thomas Kohmetscher
KENTUCKY – Clyde Lang
LOUISIANA – Christopher Piley
MAINE - Richard Farnsworth
MARYLAND – Marty Lampner
MASSACHUSETTS - Nancy Silver Hargreaves
MICHIGAN –Bob Stein
MINNESOTA – Karin Stockwell
MISSISSIPPI – VACANT
MISSOURI – Katie Smallen
MONTANA – Graydon Moll
NEBRASKA –Tony Green
NEVADA – Mark Inouye
NEW HAMPSHIRE - Timothy Sullivan
NEW JERSEY - Mercedes Witowsky
NEW MEXICO - Mark Johnson
NEW YORK – Linda Laul
NORTH CAROLINA - Charles Li
NORTH DAKOTA – Brenda Niess
OHIO - Gary Toth
OKLAHOMA – Fredda Moore
OREGON – Sheila Barker
PENNSYLVANIA – Charles Hooker
RHODE ISLAND – VACANT
SOUTH CAROLINA - Terry Rogers
SOUTH DAKOTA - Rebecca Carlson
TENNESSEE –Theresa Sumrell
TEXAS – Lora Butler
UTAH – Bill Woolston
VERMONT – Jerry Bernard
VIRGINIA – Jennifer Fidura
WASHINGTON – Leslee Currie
WEST VIRGINIA – Steve Hendricks
WISCONSIN – VACANT
WYOMING – Jeff Gardner
Key to Grid Questions
State Budget Deficit FY03 - $ or %
Medicaid Reduction - $ or %
Contract Reductions or Increases - % +/-
# of Individuals Moved from Institutions/ICFs/MR to the Community
Enacted Wage Enhancements - $ or %
# of Individuals on Waiting List – if applicable
Litigation ADA/Olmstead – Yes/No
Litigation Medicaid – Yes/No
Litigation Wages – Yes/No
Federal ICFs/MR Look Behind Past 12 months – Yes/No
Federal HCBS Waiver ReviewPast 12 months – Yes/No
Provider Input on MRDD Related Waivers – Yes/No
State Plan in Response to Olmstead – Yes/No
State Association NAC Contribution – Yes/No
Key to Grid Symbols
* (asterisk) -- Indicates additional information on pages following grid (by topic).
M – million
B – billion
-- (two dashes) -- Indicates no information received in response to question.
Environmental Scan Questions
State Fiscal Environment – What long-term supports and other optional services for people with disabilities are being curtailed? What are the specific effects of the states' fiscal environment on provider rates? What changes have been placed on Medicaid eligibility?
Congressional $10 Billion FMAP/$10 Billion Revenue Sharing - How has your state used the enhanced federal Medicaid match? Was it used to avert Medicaid cuts in services, eligibility, or provider rates? How were FMAP distributions used for MR/DD and other disability programs? Were any other of the state's federal revenue sharing funds used to assist with state and local essential government activities or unfunded mandates related to disability programs?
Promising Practices -- What promising/innovative service and supports delivery and business practices in your state have shown promise, may be of national significance and/or of value to other providers? Please detail.
Provider issues – What indicators of progress, current and potential challenges or opportunities exist in your state that may have ramifications in other states (e.g., workforce, unionization, budget cuts, service models and finance methodologies)?
Workforce – How is your state using HHS systems change grant awards or demonstration grants to improve service delivery and address workforce development?
HIPAA – Privacy Standard: What are the outstanding problems associated with the implementation of the privacy standard in your state and with providers? Electronic Transactions and Code Set Standards: A. Are you/is your state using electronic billing for Medicaid services/reimbursement in response to HIPAA's electronic transaction and code set standards? B. What difficulties, if any, did you/other disability providers experience in transitioning to the use of standard code sets (i.e. elimination of local codes)?
STATE BACKGROUND MATERIALS
AND ATTACHMENTS
California
The Developmental Services Network in California has worked for the past 18 months to increase Medicaid rates for hospitals and nursing homes using provider taxes.The proposal was passed by the California legislature in 2003.CMS has recently approved the plan which should result in a 3% net increase and is retroactive to August 1, 2003.The result is a $10 million increase for to hospitals, nursing homes, and CN rates.
1) State pays us $9 increase.
2) State claims $4.50 from the Feds.
3) State taxes us $6 thus,
State makes $1.50
Provider makes $3
Feds out $4.50
CA DISABILITY COMMUNITY ACTION NETWORK CAPITOL REPORT
ISSUE #11-2004 JANUARY 15, 2004
California Disability Lawsuit Faces Major Setback;
US Supreme Court In Another Case Rules Against States On Court Approved Agreements (Court Decrees)
SACRAMENTO - A key disability class action lawsuit, Sanchez v. Johnson, was given a major setback last week when a federal district court judge ruled that the plaintiffs had no standing to sue the State of California and dismissed the case. Plaintiffs, who include persons with developmental disabilities, their families and community-based organizations, vowed to appeal the ruling to the 9th Circuit Court of Appeals. [note: "Sanchez" is Stephen Sanchez is a person with developmental disabilities in a state institution and is one of the plaintiffs, and "Johnson" is Grantland Johnson, who was Secretary of the California Health and Human Services Agency when the case was filed and headed the agency that oversaw the departments responsible for programs that serve people with developmental disabilities]
The ruling comes just days after the release of Governor Arnold Schwarzenegger's proposed 2004-2005 budget that calls for massive cuts to community services and supports for children and adults with disabilities, including elimination of In-Home Supportive Services Residual Program and other major cuts to that program. Advocates say that the court ruling, previous state budget reductions and the Governor's proposals for 2004-05 represent a continued attack on the rights of people with disabilities.
Meanwhile, in a different case,Frew v. Hawkins the US Supreme Court, in a decision released Wednesday, January 14, ruled against Texas and other states, making it more difficult for state officials not to comply with court approved agreements to improve health services for low-income people, nursing home care or conditions in prison, in what is considered a major victory for advocates of the poor and nursing home advocates. In a third case that has major implications for people with developmental disabilities, Capitol People First v. Johnson, plaintiffs face a critical test in the coming weeks in that key class action lawsuit in California Superior Court (see separate California Disability Community Action Network Capitol Report on this)
In a similar legal issue to Sanchez v. Johnson, a federal district court judge in Sacramento seemingly reached an opposite conclusion on a similar legal issue, and granted a preliminary injunction that blocked the State of California from implementing a 5% rate reduction for certain Medi-Cal providers that was scheduled to go into effect January 1, 2004, because the State failed to consider how the cuts would impact access to health care for people with developmental and other disabilities, seniors and people with low incomes. The suit was filed by a coalition of Medi-Cal providers.
Federal District Court Judge David Levi said in his 42-page ruling that "...because the state failed to consider the effect of a rate reduction on beneficiaries' equal access to quality medical services, in view of provider costs, the pending rate reduction is arbitrary and cannot stand."
The 5% rate reduction was passed as part of the 2003-2004 Budget last July. The judge's order in that case however is not final and the state intends to appeal. The injunction is temporary but remains in effect until the lawsuit goes to trial or if the State is successful in its appeal. This case has a significant impact on the state budget for 2004-2005.
Another critically important case, Tennessee v. Lane, was heard before the US Supreme Court January 13, to resolve the issue whether people with disabilities have the right to seek damages for civil rights violations by state entities [see California Disability Community Action Network Capitol Report #9, January 13]. Crowds of people with disabilities and other advocates protested in support of the ADA in demonstrations held on the steps of the US Supreme Court building, and in cities across the nation including Oakland and Sacramento.
SANCHEZ V JOHNSON CALIFORNIA CASE
What the US District Court Ruled
* In the Sanchez v. Johnson lawsuit, federal district court judge Claudia Wilkins issued a ruling on January 5 that the plaintiffs - including Easter Seals, System Reform, United Cerebral Palsy, California Rehabilitation Association and several people with developmental disabilities dismissing the case because the plaintiffs, she ruled, had no standing to sue.
* Judge Wilkins cited a 2002 US Supreme Court decision (Gonzaga University v. Doe) as the basis for her ruling.
* While she did not rule on the actual merits of the case itself - and plaintiffs and supporters vow to appeal, the ruling is probably a fatal blow to the three year old lawsuit.
What the Plaintiffs Say
* "We definitely will appeal" said Connie Lapin, whose son has autism, and is part of an organization that is a plaintiff to the lawsuit, " it is so sad that we have to sue for the funding and services that people with disabilities have a right too. But its shameful that we are being told that we have no rights to even sue."
* Plaintiffs and supporters of the case said that the "...overwhelming evidence in the case showed that the payment rates for services to persons with disabilities were not based on any cost analysis and resulted in high turnover of care giving personnel, thereby gravely impairing service quality. Judge Wilken, however, did not consider that evidence or reach the merits of the case, saying instead that the plaintiffs have no rights under federal law to bring a suit to enforce the federal law." The plaintiffs contend that the Judge's ruling was "fatally flawed"
* Plaintiffs claimed that federal law does not allow states to take federal money while cutting back Medicaid services to the point where effectiveness of the services is jeopardized. They urged state legislature to devote increased federal resources for community based services to those services and not to take that money out of the developmental services system to pay for other programs. They also urged the US Congress to clarify the right to sue to make sure states spend their federal money in accordance with Medicaid requirements.
What the Defendants Say (The State)
* A formal comment was not available from the State, but the State of California contended, in the case, that a recent US Supreme Court decision (Gonzaga University v. Doe) reversed the legal basis of an earlier ruling of the court, which Judge Wilkins made in September 2001, that recognized the right of the plaintiffs to sue.
Impact To People With Disabilities
* The ruling is a tremendous setback because if it was allowed to proceed further to trial, California officials would have likely been under some pressure to settle the case - which could have resulted in some commitment to raise funding for community-based direct care workers who provide services and supports for children and adults with developmental disabilities.
* When the case was filed in 2000, many Capitol observers and advocates felt it had a big impact on helping to prevent much larger budget reductions to services for people with developmental disabilities in 2001 and 2002. However, after an summary judgment ruling in late August 2002 that went against the plaintiffs, the state clearly no longer feared the lawsuit.
* Advocates were furious when the Davis Administration, in late May 2002, put in the 2002-03 budget $3 million in additional funds for the Attorney General to hire more consultants and resources to fight the Sanchez v. Johnson lawsuit and also two other cases, while the Governor was also proposing major cuts in spending in services for people with disabilities. The Legislature later approved the appropriation.
Background
* The suit was filed in 2000, with the plaintiffs consisting of persons with developmental disabilities, including Stephen Sanchez, who is the lead plaintiffs, who are or face the threat of being institutionalized in a developmental center, and also several community organizations. The lawsuit named the then Secretary of the California Health and Human Services Agency, Grantland Johnson and other state officials responsible for programs for persons with developmental disabilities.
* In September 2001 the court found that the plaintiffs could sue under 42 USC S 1983 to challenge the state's implementation of the "efficiency, economy, and quality of care" provision of S 30(A).
* In August 2002, Judge Wilkins issued a summary judgment that dismissed all of the plaintiff's claims except the complaint alleging that the State of California violated Title XIX of the Social Security Act by failing to provide adequate funding for community based services and supports for people with developmental disabilities.
* Title XIX of the Social Security Act, 42 USC sS 1396a (a) (30) (A) provides:
"(A) State plan for medical assistance must...provide such methods and procedures relating to the...payment for care and services under the plan...as may be necessary...to assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area."
Next Steps and Prospects
* Plaintiffs intend to appeal to the 9th Circuit Court of Appeals. The State is certain to contest the appeal in a process that could take a year or more. Prospects do not look good, though plaintiffs remain hopeful in large part to a recent injunction by a Sacramento area federal district court judge. Plaintiffs in theory, if they lose the appeal, could attempt to appeal to the US Supreme Court, though that is not likely.
FREW V. HAWKINS TEXAS LAWSUIT
What the US Supreme Court Decided
* In a unanimous decision, the high court said once state officials sign onto court agreements (consent decrees), federal judges have the power to see that states live up to the bargain.
* US Supreme Court Justice Anthony M. Kennedy wrote for the court that "Federal courts are not reduced to approving consent decrees and hoping for compliance. Once entered, a consent decree may be enforced."
What the Plaintiffs Say
* Barbara Bade Aldave, one of the attorneys representing Texas low income children, noted that the states' rights argument was a backdrop to the Texas health care case, but even the court's firmest states' rights
supporters rejected the notion that Texas could suddenly renege on promises its officials had made. She noted that Justice Anthony Kennedy is among the five-member court majority that has prevailed in previous states' rights cases but that in this case, "he didn't like the argument that the state can just break its word."
What the Defendants Say (State Of Texas)
* "State officials are backed into a corner when faced with an institutional reform suit," lawyers for the defendants said, "Like any other defendant, state officials simply wish to avoid the time and expense of litigation. But unlike private parties, state officials are motivated to settle to avoid the public perception that by litigating an institutional reform suit, they are callous to the needs of children, the elderly or other vulnerable groups."
* Texas Solicitor General Ted Cruz (the state's attorney general) commented despite the ruling, the US Supreme Court appeared to be sympathetic to states bound by long-running consent decrees.
"Although we're disappointed that the court ruled against us, the court did express a great deal of concern about the harm to state sovereignty that over-broad consent decrees can cause," Cruz said.
Impact to People With Disabilities
* Court agreements or consent decrees are the common method of resolving class-action lawsuits against state public officials and agencies regarding health care, prison conditions, and services to seniors and people with disabilities and low-income children. This could have impact on California agreements or future suits.
* In the Frew v. Hawkins suit, Texas state officials did not admit wrongdoing but signed a consent decree, agreeing to improve health services for poor children in Texas. The Supreme Court ruling immediately affects about 1.5 million Texas children who rely on the government for health and dental care.
* It is not certain yet what immediate impact - if any - the decision will have in California.
* Court agreements or consent decrees can cost many millions of dollars and obligate states to lengthy and detailed scrutiny from federal courts. A ruling for Texas could have disrupted court agreements in dozens of states impacting millions of people.
* The Supreme Court ruling cuts off a longstanding line of defense for states that want to get out from under long-term court agreements (or decrees), by ruling that state officials cannot claim they are immune from lawsuits filed to enforce the court decrees.
* The Supreme Court action represents a rare defeat for states on cases where they are being sued. The high court has more often in recent close 5-4 decisions, expanded state sovereign immunity in other areas, often by ruling that Congress exceeded its authority in binding the states in certain federal laws, or by holding that a private citizen has no right to sue a state government over alleged violations of federal law.
Background
* In 1998, lawyers for poor children returned to federal court to complain that Texas still was failing to provide services required under the federal Medicaid law in a court agreement originally ordered in 1996.
* Nineteen states backed Texas. All have been or are currently bound by consent decrees. Examples of long-running consent decrees include one in New York over medical treatment for disabled state prison inmates entered in 1980 and one in Georgia over prison conditions entered in 1982.