In 1999, by a six to three majority, the United States Supreme Cour t issued a seminal decision in Olmstead v. L.C., which
involved the application of Title II of the Americans with Disabilities Act of 1990 (ADA). Olmstead concerned several intellectually disabled individuals (“individuals”) who were admitted to a Georgia hospital but not timely discharged from the hospital although their treatment professionals agreed that they could be cared for safely in the community.

The question before the Court was whether the failure to discharge the individuals to a community-based setting violated Title II of the ADA as argued by the individuals or whether the failure to discharge was not discrimination but rather, as the state of Georgia argued, based on the state’s lack of available funding. Specifically, the Olmstead Court applied the language in a regulation promulgated under the ADA, which requires a “public entity [to] administer . . . programs . . . in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”

The Court concluded that Title II of the ADA requires states to place persons with intellectual disabilities in community-based settings when
medically appropriate and when the intellectually disabled individual wants such a placement. In addition to medical appropriateness and patient choice, the Court found that placement in a community-based setting is necessary if the placement can be reasonably accommodated, taking into account the resources available to the state and the needs of others with intellectual disabilities. Four U.S. Supreme Court Justices recognized that the ADA does not require the placement of individuals in the community and that for some individuals a community placement will simply not ever be appropriate.

Fundamental Right for Seniors
It is important to note that the Olmstead decision was not a Medicaid case, but rather a case limited to review under Title II of the ADA. However, since the U.S. Supreme Court ruled on the issue in 1999, both the Federal Government and state governments have cited the Olmstead decision as one of the reasons to fund more community-based services for both the disabled and elderly populations.

On the Olmstead ruling’s tenth anniversary, President Obama launched the Year of Community Living to reaffirm the Administration’s
commitment to “one of the most fundamental rights of Americans with disabilities: Having the choice to live independently.” Also on the Federal level, the Department of Justice has pursued enforcement of the ADA and Olmstead decision during the past several years, with 45 recent enforcement efforts in 25 states involving state operated facilities, private facilities, and segregated day facilities.

Local Initiatives
Like many other states, the Commonwealth of Kentucky has taken steps to ensure compliance with the ADA and Olmstead decision, resulting
in the shift of limited resources to more community-based or community-like settings. Kentucky has an Olmstead Compliance Plan and has instituted multiple implementation committees over the years. Such efforts include the creation of waivers such as the Michelle P. waiver, the Acquired Brain Injury waiver, the Supports for Community Living waiver, and the Money Follows the Person demonstration project.

Most recently, Kentucky filed an application for the Balancing Incentive Payments Program (BIPP), which was established under Section 10202 of the Patient Protection and Affordable Care Act of 2010. The BIPP increases the Federal Matching Assistance Percentage to states that make structural reforms to increase the number of individuals who are discharged from a hospital setting back home and to increase the number of community-based long-term care services and supports available. The BIPP may result in Kentucky Medicaid receiving a two percent increase in the federal match payment if Kentucky Medicaid’s expenditures for long-term care services and supports in the community-based setting reach 50 percent.

The details of the Kentucky BIPP plan are not publicly available as the Cabinet for Health and Family Services has not promulgated administrative regulations outlining its policy or how it will fund the program, which will require building an infrastructure to care for an increased number of individuals in community-based settings. One thing is clear, the AARP has been vocal in its efforts to shift funding from nursing homes to community-based programs and even filed a letter of support for the Kentucky BIPP plan.

Seeking Federal Dollars
Meanwhile, as Kentucky attempts to seek increased federal dollars for its Medicaid program by building a community-based infrastructure
to care for the elderly population, licensed nursing facilities and other current providers of long-term care services and supports are successfully changing their delivery models with an emphasis on person centered care; outpatient rehabilitation services; and increased numbers of assisted living and independent living communities.

As we wait to see the details of the Kentucky BIPP plan, it will be interesting to watch how Frankfort policy-makers and the current providers
of long-term care services and supports for the elderly population work together to ensure that the elderly population in Kentucky continues to receive the high quality and medically appropriate care of their choice.

K. Kelly White Bryant is a healthcare attorney at Stites & Harbison in Louisville, Kentucky.