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April 05, 2006

Kentucky Protection and Advocacy and the Cabinet for Health and Family Services Reach Agreement to Increase Community Support for People with Mental Retardation and Related Conditions

For Immediate Release Contact: Maureen Fitzgerald
January 26, 2006
502-564-2967

Kentucky Protection & Advocacy, the Commonwealth's Disability Rights Legal Advocacy Agency, and the Cabinet for Health and Family Services, have reached an agreement that will increase funding for Medicaid services for people with developmental disabilities and move the state away from Medicaid's institutional bias toward a preference for community-based services.

The agreement marks the culmination of the civil rights class action lawsuit, Michelle P., et al. vs. M. Birdwhistell, et al., filed in federal court in 2002 by four individuals with disabilities who were living at home with aging caregivers. The plaintiffs sought to require the state to provide Medicaid services in a timely manner so that they could stay in community, home-like settings rather than live in institutions such as nursing homes or large state-run intermediate care facilities.

"This agreement will commit state health officials and the executive branch to seek a substantial increase in the amount of money in the Medicaid program that is devoted to services for people with mental retardation and developmental disabilities," said Ken Zeller, lead attorney for the plaintiffs. The shift in emphasis from institutional care to community services is expected to free up an increasing level of funding over a five year period for community-based services while not ignoring the preference of those who choose institutional care for themselves or their loved ones. "This is about people being able to choose to live in communities and receive the services they need to participate and interact socially with their non-disabled peers,” said Mr. Zeller. The Settlement Agreement becomes an Order of the Court when finally approved and the Court will retain jurisdiction over the case for a period of two years for enforcement purposes.

"We look forward to working with the Cabinet to reach a goal we all share, which is to build community supports and monitoring systems so that people can live, work, and play safely in home-like settings in typical neighborhoods," said Maureen Fitzgerald, director of P&A.

In the 2006-2008 biennium the settlement calls for:

• An infusion of $27 million for the Supports for Community Living program (200 new SCL slots), a program that is designed as an alternative to institutional care for people such as those in the class


• $15.2 million for crisis intervention services designed to prevent the hospitalization of class members during acute, short term crisis periods


• $3 million for the state Supported Living program, a program that serves class members as well as persons with other disabilities to enable them to succeed in community living

  The Settlement Agreement calls for the State to devote the following amounts to services for persons with mental retardation and developmental disabilities:

  (Baseline 2004) ($237,115,704)
  Calendar Year (CY) 2006 $303,414,353.00
  (CY) 2007 $342,311,477.99
  (CY) 2008 $385,106,343.00
  (CY) 2009 $432,484,401.00
  (CY) 2010 $485,100,330.00

  The plaintiffs sought community-based services under the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and federal Medicaid law. P&A argued that, consistent with the U.S. Supreme Court's landmark disability discrimination case, Olmstead v. L.C., people with mental retardation or developmental disabilities who were eligible for the types of services that are provided in intermediate care facilities for mental retardation (ICFs/MR) were entitled to those same services in a timely manner in more integrated settings (community-based). The state argued that it had a comprehensive, effectively working plan for placing people with mental disabilities in less restrictive settings and a waiting list that moved at a reasonable pace.

  The case had been scheduled to go to trial in March 2006. With the help of mediator, Federal Magistrate Judge J. Gregory Wehrman, the parties successfully reached a settlement agreement after four months of intense negotiation.

  U.S. District Court Judge Joseph Hood will consider preliminary approval of the settlement in a hearing set for 2:30 p.m. today in the federal courthouse in Lexington Kentucky. After notice is given to the class members Judge Hood will hold a final fairness hearing. Class members will have a chance to review the settlement and if they disagree, will be able to file formal objections. The hearing will be held at a time to be set by the Court but is anticipated to be in 6-8 weeks.

  Posted by Ken Zeller