September 9, 2014
Detailed comments are here. An Executive Summary follows.
The Kentucky Concerned Family Network (KCFN) and VOR appreciate this opportunity to submit comments in response to the draft Kentucky Olmstead Compliance Plan, released for stakeholder input by the Kentucky Cabinet for Health and Family Services (CHFS) on August 18, 2014.
The OCP is very broad and reaches across several different disabilities. It will, if implemented as proposed, benefit many persons with disabilities, negatively impact others by limiting their residential choices, and will cause unintended consequences for an unknown number of persons as new rights are embraced, examined, and experienced without the proper oversight, services and even temporary support.
The limited public comment opportunity is a major concern.
In addition to Strategy 6.3 noted above, the OCP in strategy 6.4 cites a P&A lawsuit settlement against the Cabinet for Health and Family Services (CHFS) that requires 600 persons to be transitioned out of group homes and into community residences over a three year period. The first 100 transitions are to be completed by October 1, 2014, less than 30 days from now.
We view quotas as inconsistent with the letter of and spirit of the Olmstead Supreme Court decision. Quotas are antithetical to, and prevent, individual choice and person-centered planning. Olmstead does not require that individuals be forced out of a good placement against their choice and best interests; indeed the Court required that individuals do not oppose transition to the community. The overall tone of the OCP suggests an ideological deinstitutionalization bias that is unnecessary while seeking to obtain the many rights due to persons with a disability.
The role of families and legal guardians:
The OCP displays a complete disregard for the important role of families and legal guardians. We expressly request the inclusion of “individual choice and need, with required family and guardian input” in the OCP’s goals, as well as an expansion of the Regional Olmstead Committee (Strategy 6.6.) to include ICF family representatives and providers (see Attachment B, OCP redline). Furthermore, while we support mentoring relationships (Strategy 4.4), the OCP must expressly indicate that mentors are only assigned to individuals upon informed consent of the individual, or where appointed, his/her legal guardian, whose decision-making authority is not affected by the appointment of a mentor (see Attachment B, OCP redline).
Although assessments of the person with a disability are mentioned in the OCP, a single specific tool is not defined. In fact, different Kentucky HCBS waivers may use different assessment tools. Regardless of the assessment tool or tools used to create the Person Centered Plan of Care, it is critical that parents, guardian and family members have the right to take part in all assessment or evaluation meetings, and that the tool(s) used is/are available as public information. An appeal process for family and legal guardian concerns should be an integral part of the assessment planning in every HCBS waiver.
CMS Final HCBS Rule:
The Kentucky Department of Medicaid Services and several other CHFS departments are just now beginning a multi-year process to implement the CMS Final Rule HCBS waiver changes in the majority of Kentucky HCBS waivers. It is unclear how the OCP will add to the complexity of this effort, or even if it will be possible to manage both efforts at the same time.
Given the breadth and depth of the OCP, the Executive Summary and following comments touch on only our primary concerns. Going forward, KCFN and VOR expressly request full inclusion in any future planning, drafting and implementing effort.