November 1st came and went as proposed Ohio Department of Developmental Disabilities (DODD) new rules and rates were halted by the Centers for Medicare and Medicaid Services (CMS). A formal request for additional information (RAI) has been extended to DODD from CMS as communicated on October 17th by Lori Horvath, Deputy Director – DODD. The fact that an RAI was requested was itself a moment for pause. In years past, it seemed that DODD and CMS were close enough to resolve its minor differences through back channels and less formal communications. That being said, administrations change, personnel change, so this scenario may be different than what had become common place, it still was not something to get alarmed about. However, on Halloween no less, new (Department of Justice) DOJ guidelines were issued that stressed a broader application for the American with Disabilities Act, stating,
The integration mandate of Title II of the ADA is intended to allow individuals with disabilities to live integrated lives like individuals without disabilities, including by working, earning a living and paying taxes,
The guidelines go on to say,
The civil rights of persons with disabilities, including individuals with mental illness, intellectual or developmental disabilities, or physical disabilities, are violated by unnecessary segregation in a wide variety of settings, including in segregated employment, vocational and day programs.
State and Local Accountability
According to the Department of Justice, the goal of any state and local government’s employment service system is to support the most integrated setting that enables individuals with disabilities to interact with non disabled persons while employed full time or part time and earning at least minimum wage. In contrast, the DOJ expresses that segregated settings include settings that are managed, operated or licensed by a service provider to serve primarily people with disabilities and whose primary workforce are people with disabilities who are supervised by paid support staff.
My hunch is that CMS will be asking for specific time lines associated with providing what Ohio calls Vocational Habilitation. DODD’s submitted amendments did not include hard stops for Vocational Habilitation services, leaving open the possibility for a longer than desired amount of time in a segregated system. It maybe that DODD will be asked to limit how long someone can stay solely in a Vocational Habilitation setting.
In addition the Department of Justice made it clear in their guidance that, regarding a state’s Olmstead Plan,
…the plan must include concrete, reliable, and specific commitments for, and a demonstrated success of, actually moving individuals from segregated sheltered workshops or other segregated settings to integrated employment settings.
What DOJ Guidelines Mean for Providers
My reading of the 13 page document from the Department of Justice reinforces that providers should not take the rule implementation delay as a possible reprieve. Family, provider and public agency alike, have hoped for a reprieve for a couple of years now. But my read is that DODD will be assessed as not going far enough in their rule amendments to CMS. In my conversations with state officials, I was aware that November implementation was phase one. They had a phase two in mind within 3-5 years. Change is still coming, but it may have more torque to it than what we originally thought. TIL’s experience with DODD transformation grants, thus far, only reinforces the need for providers to do a thorough scrub of their program goals, policies and fiscal modeling.