Massachusetts seeks a delay in court-ordered community services for mentally retarded

Massachusetts officials have asked a federal judge to delay his order that by mid-October the state provide medical assistance services to mentally retarded individuals in group homes.

The services come under a waiver that includes residential habilitation services in group homes to beneficiaries who are already on a waiting list.

The order, originally issued July 14 by Judge Douglas Woodlock, came in a class action suit brought by parents of five mentally retarded adults who charged that those disabled adults have been kept on a waiting list for years, violating the Medicaid Act’s requirement that assistance be furnished "with reasonable promptness to all eligible individuals."

The order declared that individuals are entitled to residential services in group homes within 90 days "to the extent that such settings exist." The judge said the record was unclear on availability of the homes and gave state officials an opportunity to show why an alternative timetable would be needed.

Massachusetts Department of Mental Retardation spokeswoman Donna Rheaume told State Health Watch that a hearing on the state’s response was scheduled for the end of September. In its filing, the state said that vacant beds are not available in group homes for the adults certified by the judge as members of the class who are to benefit from his decision. Because of the lack of available beds, the department said, it "would not be able to comply with an order to place persons on the wait list into group homes within 90 days. . . ."

The agency also said it is not possible to create new state-funded places to live or to place individuals into existing beds within 90 days. It said time delays to fill current vacancies, develop new programs through a request for proposal process, develop new programs through contract amendment, or develop shared living arrangements can continue for months. "If, under the court’s order, it is the Commonwealth’s obligation to provide the group home bed as well as the waiver services within 90 days after an individual is placed on the wait list . . . then it would be impossible for the Commonwealth to comply with the order in view of the actual amount of time required to develop a community residential bed."

The department also recounted the months it took to work with the families of two of the individuals who sued the state to successfully place them in group homes. It asked the court not to issue an order with a specific time requirement for reducing the waiting list for services, adding the agency has received additional funding from the state and has developed a plan for reducing the waiting list. It pointed out that all of the individuals who would be members of the class approved by the court already are receiving a combination of waiver plan services, even as they wait for community-based housing.

The five disabled adults whose parents brought the suit had been on the waiting list for services for between three and 10 years. Mr. Woodlock said the suit turned on the question of what is meant by "reasonable promptness" in providing services and whether it is "reasonable" for an eligible recipient to be on a waiting list for years.

At trial, state officials indicated they have maintained a waiting list of individuals eligible for services for the mentally retarded since at least 1988 and that it has been on a computerized database since 1992. At the end of fiscal year 1998, there were 3,014 individuals on the list. "The individuals on the list seek a variety of services," Mr. Woodlock wrote in his opinion, "but the Department of Mental Retardation reported in 1996 that consistently over time, the vast majority of individuals in need of services are in need of a residential service.’"

State officials argued that "residential services" can mean many different kinds of services, including in-home support for the families of mentally retarded individuals, and said that many people on the waiting list, including those who brought the suit, already receive some waiver services. While the waiting list grew for several years, they said, the number of people on it decreased last year and it continued to shrink this year because of new funding appropriations by the state legislature and initiatives by the agency.

During the course of the proceedings, the judge said in his opinion, the state sought and obtained approval from the Health Care Financing Administration (HCFA) to change the terms of the waiver, including the definition for residential services. The new definition said residential habilitation did not include supports or services for which there was no funding available. The judge said the new definition "provided . . . an escape hatch from the . . . complaint . . . permitting [the department] to pay for residential services only if [a] state appropriation were available for such services."

Two months later, the state asked HCFA to allow it to drop the funding requirement from the definition.

In ruling in favor of the plaintiffs, Mr. Woodlock said that while the urgency of their need for services may vary somewhat, "case-by-case analysis is not required to determine a time frame that is reasonably prompt. In all cases, waiting periods of many years are outside of the zone of reasonableness."

Although he pointed out that several courts have said that inadequate funding does not excuse failure to comply with a reasonable promptness requirement, the judge acknowledged that his ruling cannot create new settings if they don’t now exist, but said his decision was intended "to encourage vendors to be willing to provide both the settings and the services to meet the promise of the Massachusetts waiver plan by assuring reimbursement up to the waiver cap."

Neil McKittrick, an attorney with Hill & Barlow in Boston, the lead attorney for the disabled individuals named in the case, says the decision "is a victory for the thousands of families who have dedicated their lives to caring for their mentally retarded children but who now urgently need the state’s help. The parents and caregivers of this class, many of whom are in their 60s and 70s, have cared for their adult children in their own homes for 30 or 40 years, saving the commonwealth millions of dollars. This decision forces the commonwealth to live up to its legal obligation to provide Medicaid services to these people now, not years from now."

Mr. McKittrick tells State Health Watch the state’s decision to seek additional time to implement Mr. Woodlock’s ruling was not unexpected, and says he remains "very optimistic" that the ruling would ultimately stay in force.

Contact Ms. Rheaume at (617) 624-7810 and Mr. McKittrick at (617) 428-3422.