Michelle P. Case Update

Michelle P. Litigation

Filed in 2002 in federal court in Frankfort by four individuals with developmental
disabilities alleging that the state of Kentucky failed to comply with provisions
of the Medicaid Act and the Americans with Disabilities Act. The suit alleged
that these laws require the state to provide services to persons with developmental
disabilities and related conditions in a reasonably prompt manner and in a
more integrated community setting when that is their choice. It was later certified
as a class action on behalf of all Kentuckians with mental retardation, developmental
disabilities and related conditions who were seeking community based Medicaid
services. The case was settled in 2006.

The Michelle P. waiver is one part of the agreement. It required federal
approval which was long in coming. It is anticipated to serve thousands of
persons and go a long way in preventing their institutionalization.

Michelle P. Settlement: Major Provisions

• $247,900,000.00 increase in the funding for all MRDD
  services between March 2006 and calendar year 2010, a doubling of funding
  from 2004 levels.
• $27,500,000.00 for Supports for Community Living in 2007
  and 2008
• $15,200,000.00 for crisis stabilization services for
  persons with MRDD.
• $3,000,000.00 new general fund dollars for the Supported
  Living Program.
• Anew level of service comparable to
  HCBW available to Medicaid eligibles with MRDD which may be self-directed
  as to non-medical services (the Michelle P. waiver).
• Increased reimbursement by a minimum of 75% to family
  care homes and adult foster homes to encourage provider development.
• Adoption of “money follows the person” for
  persons leaving publicly funded ICFs/MR with a pledge to not “backfill” these
  vacated beds. This policy is expected to encourage the downsizing of institutions
  for persons with MRDD.
• A movement away from an institutional bias in the way
  Medicaid services for persons with MRDD is delivered in Kentucky.

Michelle P Waiver

• Submitted to the Feds on June 1, 2007
• Feds had 90 days to approve or disapprove
• Feds submitted questions to KY on July 9, 2007
• KY responded July 19, 2007
• Approved August 29, 2007

Brief Description

The Michelle P. waiver program is being developed to serve
Kentucky residents as an alternative to institutional care for individuals
with mental retardation or developmental disability. These individuals must
meet the level of care criteria for placement in an Intermediate Care Facility
for the Mentally Retarded or a Developmental Disability (ICF/MR/DD) and whose
services in an ICF/MR/DD would qualify for payment under the State Plan for
Medical Assistance. This program is designed to allow an individual to remain
in or return to the community in the least restrictive setting. Michelle P.
waiver services are not available to an individual while an inpatient of a
hospital, nursing facility or ICF/MR/DD.

The Department for Mental Health and Mental Retardation
Services (DMH/MRS), a separate agency of the Commonwealth of Kentucky, will
perform waiver operational and administrative functions through an interagency
agreement with the Department for Medicaid Services (DMS). DMS exercises administrative
discretion in the operation of the waiver and issues policies, rules and regulations
related to the waiver. Currently, DMS has contracted non-governmental agencies
to perform the functions of the Quality Improvement Organization (QIO) and
fiscal agent.

Person center principles are utilized in the development
of the waiver member’s plan of care. This plan of care includes an in-depth
self-assessment which includes the member’s goals and preferences. Michelle
P. waiver services will be provided by various community-based licensed and
certified agencies. Participant directed opportunities will enable waiver members
to choose an alternate delivery of their non-medical waiver services by offering
waiver members the opportunity to recruit and employ individuals in the community
to serve as providers.

Number of Individuals to Be Served

Level of Care Criteria

Kentucky Administrative Regulations will reflect, an individual shall meet
ICF-MR-DD patient status if the individual requires physical or environmental
management or rehabilitation and meets the following criteria:

      (a) The individual has a developmental disability
or significantly subaverage intellectual functioning and requires a planned
program of active treatment to attain or maintain the individual's optimal
level of functioning, but does not necessarily require nursing facility or
nursing facility with waiver services;

      (b) The individual requires a protected environment
while overcoming the effects of developmental disabilities or subaverage intellectual
functioning while:

      1. Learning fundamental living skills;

      2. Learning to live happily and safely within
his own limitations;

      3. Obtaining educational experiences that
will be useful in self-supporting activities; or

      4. Increasing his awareness of his environment;
or

      (c) The individual has a psychiatric primary
diagnosis or needs if:

      1. The individual also has care needs as shown
in paragraph (a) or (b) of this subsection;

      2. The mental care needs are adequately handled
in a supportive environment (i.e., the intermediate care facility for individuals
with mental retardation or a developmental disability); and

      3. The individual does not require psychiatric
inpatient treatment.

An individual who does not require a planned program of active treatment
to attain or maintain the individual's optimal level of functioning shall not
meet ICF-MR-DD patient status.

An individual shall not be denied for ICF-MR-DD services solely due to advanced
age, or length of stay in an institution, or history of previous institutionalization,
if the individual qualifies for ICF-MR-DD services on the basis of all other
factors.

The administrative regulation for this program shall define “developmental
disability” as a severe, chronic disability that meets the following
conditions:

• Is attributable to:
  1. Cerebral palsy or epilepsy; or
  2. Any other condition, excluding mental illness, closely related to mental
     retardation resulting in impairment of general intellectual functioning or
     adaptive behavior similar to that of an individual with mental retardation
     and requires treatment or services similar to and requiring treatment or
     services similar to those required by persons with mental retardation;

• Is manifested prior to the individual twenty second (22 nd) birthday;
• Is likely to continue indefinitely; and
• Results in substantial functional limitations in three (3) or more of
  the following areas of major life activity:
  1. Self-care;
  2. Understanding and use of language;
  3. Learning;
  4. Mobility;
  5. Self-direction; or
  6. Capacity for independent living.

The Department for Medicaid Services has developed an in-depth waiver assessment
tool that includes person centered planning principles. This assessment tool
identifies the member’s IQ as well as medical diagnosis. This instrument
identifies a member’s need of supports for Activities of Daily Living
(ADL’s) and Independent Activities of Daily Living (IADL’s). The
assessment also reflects the member’s current support systems, medications,
and living environment , while identifying additional support needs.

Services Provided

• Case Management
• Homemaker *
• Personal Care *
• Adult Day Health *
• Day Habilitation * (Adult Day Training)
• Supported Employment *
• Respite
• Attendant Care *
• Environmental and Minor Home Adaptations
• Behavioral Supports *
• Community Living Supports *
• Assessment/Reassessment
• Occupational Therapy *
• Physical Therapy *
• Speech Therapy *

* Members cannot exceed a total of 50 hours of these services
per calendar week.