Ask the legal expert: How do facilities respond to HCBS push?

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Attorney John Durso, Ungaretti & Harris LLP
Attorney John Durso, Ungaretti & Harris LLP
Q: Every now and then a resident clamors to be “let out” to go live independently because of all the home- and community-based services push they're seeing from the federal government. How should we respond?

With the federal government's renewed focus on the benefits of non-institutional health care, it is no wonder that you are starting to hear more of these pleas. However, it is unlikely that individuals have any cause of action that would “force” you to “let them out” of their current residency agreement.

Although it may seem obvious, it is sometimes useful to remind “private pay” residents that they are free to leave the community at any time, subject to the terms and conditions of their residency agreement.

If the state is paying for an individual's care, however, the individual also may have some recourse regarding his or her arrangements.

For example, in the widely publicized 1999 decision of Olmstead v. L.C., the U.S. Supreme Court found that unjustifiable institutionalization of disabled inpatients within a state facility that, with proper support, can live in the community is discrimination under the Americans With Disabilities Act. The court found that institutionalization severely limits a person's ability to interact with family and friends, to work and to make a life for herself. The court based its ruling on sections of the ADA and federal regulations that require states to administer their services, programs and activities “in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”

In any event, the burden to provide such an accommodation falls on the state, not on your facility.
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