RIGHTS UNDER THE LANTERMAN ACT

Chapter Thirteen
The Medi-Cal Home and Community-Based Services Developmental Disability Waiver

· Services Under the DD Waiver

· DD Waiver for Children Living with Their Parents

1. What is Medi-Cal? Why do regional center consumers need to know about Medi-Cal?

Medi-Cal (California’s name for the program known as Medicaid by the federal government and other states) is a state- and federally-funded program that pays for a wide range of health care services for many low-income people and people with disabilities. Unlike Medicare and private health plans, Medi-Cal covers long-term care in medical facilities, and some community alternatives like In-Home Supportive Services (IHSS). Medi-Cal reimburses the State for half the cost of services and equipment and for half the cost of administering the program. California receives billions in federal Medicaid reimbursements. For more information about Medi-Cal, see Medi-Cal Overview, Publication #5360.01, available on PAI’s website at http://www.pai-ca.org/issues/health_pubs.html.

Many regional center consumers get services funded by Medi-Cal. Some people do not get Medi-Cal funding, either because the services they need are not covered by Medi-Cal, or because they are not eligible for Medi-Cal.

The fact that a regional center consumer does (or does not) receive services paid for by Medi-Cal should not affect what services are or are not listed as needed in the IPP.

2. What is the Medi-Cal Home and Community-Based Services Developmental Disability Waiver?

The Medi-Cal Home and Community-Based Services Developmental Disability Waiver (DD Waiver)is one way for California to use Medi-Cal to pay for many community services that you get under your Individual Program Plan (IPP) developed with your regional center. The DD Waiver pays for many different types of community services. See questions 7 and 21.

The federal government has historically reimbursed states for a portion of the money spent on care in institutions for people with disabilities. Congress authorized Home and Community-Based Services (HCBS) waivers to pay for community services instead of medical facility care because our society has recognized that community services meet people’s needs better than institutional services.

The reason the DD Waiver is called a “waiver” is that it allows the state to waive some of the federal rules that apply to the Medi-Cal program. One rule that is waived in the DD Waiver is the rule that says if a state makes a Medi-Cal service available to one Medi-Cal recipient, the service has to be available to every other Medi-Cal recipient who needs it. Under the DD Waiver extra services are available only to Medi-Cal recipients who

· are regional center consumers and

· would qualify for services in an intermediate care facility for people with developmental disabilities (ICF/DD).

Some of the services that are available under the DD Waiver are:

· supported living

· supported employment services and

· respite.

The DD Waiver is the primary waiver for people with developmental disabilities. It brings a large amount of federal money into the regional center system for services. The DD Waiver will be available on PAI’s website (see question 1) until it is posted on the California Department of Health Service’s website for HCBS Waivers at www.dhs.ca.gov/mcs/mcpd/RDB/HCBWU/default.htm.

Not being on the DD Waiver does not limit what services you are eligible for under the Lanterman Act through your IPP. But sometimes being on the DD Waiver can be helpful to you. See question 8.

3. Am I eligible for DD Waiver services?

You are eligible for DD Waiver services if you:

· Meet California’s definition of developmental disability and you are a regional center consumer[1], and

· You either are a Medi-Cal recipient or would be eligible for Medi-Cal if you did not count the income or resources of a parent (if you are a child under the age of 18) or a spouse (see question 10), and

· You qualify for care in a Medi-Cal funded intermediate care facility (ICF) for persons with developmental disabilities. There are several types of ICFs:

o An ICF/DD,

o An ICF/DD-H,

o An ICF/DD-N.[2]

You do not actually need to receive services in an ICF; you must simply have care needs and functional limitations that are severe enough to qualify you for services in an ICF. See Chapter 7, question 22 for more information about ICFs.

4. Do all regional center consumers qualify for DD Waiver services?

No. Some regional center consumers do not qualify for DD Waiver services because their care needs and functional limitations are not severe enough to qualify them for services from an ICF. However, even if you are not eligible for DD Waiver services, your ineligibility does not affect your entitlement to receive the services listed in your IPP or IFSP. See Chapter 4.

Some regional center consumers do not qualify for DD Waiver services because their income or resources are too high for them to qualify for Medi-Cal.

However, if the reason a regional consumer cannot qualify for Medi-Cal is (1) because of the income or resources of the parent or parents (stepparent income and resources do not count) with whom the consumer lives or (2) because of the income of the spouse with whom the consumer lives, the DD waiver may help in qualifying for Medi-Cal by not counting the income or resources of the parents or spouse. See question 10.

There is an open question about whether individuals who may need a higher level of care than that provided at an ICF could nonetheless qualify for DD Waiver services.

5. Are DD Waiver services a federal entitlement? Are there enough DD Waiver slots for everyone who wants them?

An entitlement is a governmental service that is guaranteed to all people who qualify. Medi-Cal is an entitlement. See, e.g., Schweiker v. Gray Panthers, 453 U.S. 34, 36-37 (1981) (“An individual is entitled to Medicaid [Medi-Cal is California’s Medicaid program] if he fulfills the [eligibility] criteria established by the State in which he lives.”). Therefore, California cannot turn away eligible people who ask for Medi-Cal services.

Likewise, Medi-Cal waiver services are an entitlement if a waiver slot is available. Lewis v. New Mexico Dept. of Health 275 F.Supp.2d 1319, 1345 (D. N.M. 2003) (“Once the State sets up its waiver program, it is obligated to implement the waiver program as it has fashioned them”); Makin v. Hawaii 114 F.Supp.2d 1017 (1999).

The DD Waiver has a large number of slots. Each year, the number of slots increases:

· 75,000 DD Waiver slots in fiscal year 2006/07, which runs from October to September, increasing to

· 95,000 DD Waiver slots for 2010/11, the last year of the DD Waiver.

Note: Because Lanterman Act services are also an entitlement (see Chapter 1), if you want to live in the community, you should be given that opportunity regardless of whether or not a waiver slot is available.

6. How do I apply to be covered under the DD Waiver?

Usually you do not need to apply for the DD Waiver because the regional center has a strong incentive to identify you as someone who is eligible for DD Waiver services. It is in the regional center’s interest and the state’s interest to qualify you under the DD Waiver because the federal government reimburses the state for 50% of the cost of DD Waiver services.

However, you do have the right to apply on your own. To do so, you could first ask that a service coverable under the DD Waiver be included in your IPP or IFSP. See chapter 4 for information about IPPs.

You should ask that the service be covered as a DD Waiver service and that you be found eligible for the DD Waiver. We recommend that the request be in writing. The regional center should then make a determination about your eligibility for DD Waiver services and about your need for the requested service.

7. What services may be covered under the DD Waiver?

Many services authorized and funded by the regional center are covered under the DD Waiver, such as:

· residential services in a group home,

· respite for families and other caretakers,

· the supports you need to live in your own home, called “supported living services,”

· and other types of individual supports.

The specific services you get are always determined at your IPP meeting and listed in your IPP, whether you are on the DD Waiver or not.

The DD Waiver does not cover housing or food, although you may be eligible for other programs, such as subsidized housing or food stamps, that can help you pay for housing and food.

At the end of this chapter in question 21 is a listing of all the services available under the DD waiver, with a reference to the page numbers that describe the services. If you do not have access to the internet, you can ask the regional center for copies of specific pages of the DD Waiver that describe the services you are interested in.

8. What are the benefits of getting DD Waiver services?

Being on the DD waiver can help you in several ways:

Regional centers cannot limit the waiver services that they make available. Federal law requires that Medi-Cal services available in one part of the state be available in every part of the state. This is called the “statewideness” requirement of Medi-Cal.[3] The DD Waiver could have waived this requirement, but it does not. Therefore, regional centers do not have the authority to impose additional limits on the services available under the DD Waiver. A regional center that attempted to do so would be in violation of federal Medicaid law.

Regional centers cannot use their Purchase of Services (POS) guidelines to limit the amount and kinds of services available through the regional center under the DD Waiver. POS guidelines are policies of each regional center that explain its requirements for purchasing services and supports for consumers. See chapter 4, question 28.

POS guidelines that attempted to limit the amount and kinds of services available under the DD Waiver would violate the federal statewideness requirement (see above).

What is more, while regional centers can have POS Guidelines, the POS Guidelines cannot control the services that you need. Individual need, determined in the Individual Program Plan process, not POS guidelines, controls under both the DD Waiver and the Lanterman Act.[4]

You have a right to an annual review of your IPP or IFSP if you are under a waiver, and any waiver services should be listed in your IPP.[5] By contrast, under the Lanterman Act, you have a right to a new IPP every three years, or when you request one. See chapter 4, including question 12, for more information about IPPs.

Children whose Medi-Cal eligibility is based on coverage under the DD Waiver have extra protections if they are determined no longer to be eligible for DD Waiver services.

First, a re-determination is required to see if the child would be eligible for Medi-Cal under a different program before being cut off.[6]

Second, those who are eligible for Medi-Cal with no cost are protected by Medi-Cal’s Continuing Eligibility for Children provisions. These provisions require Medi-Cal to continue with no cost for as much as 12 months after the child is found to be no longer eligible for Medi-Cal without a share of cost, or not eligible for Medi-Cal at all.[7]

Receiving an extra vehicle exemption. Ordinarily, only one vehicle is exempt from consideration as a resource by Medi-Cal. But someone who qualifies for the DD waiver gets an extra vehicle exemption. A vehicle that has been modified to accommodate your physical or medical needs is exempt in addition to any other vehicle exemption available under Medi-Cal.[8]

When you qualify for Medi-Cal through institutional deeming under the waiver, your Medi-Cal covers all Medi-Cal services, not just waiver services. That includes diapers and IHSS. See questions 21 and 11.

9. Are there any reasons why I should not agree to be covered under the DD waiver?

Yes. If you have a pending lawsuit regarding an injury for which you are getting Medi-Cal services, and the lawsuit may result in you receiving money, it may not make sense for you to get DD Waiver services or to qualify for Medi-Cal through the DD waiver’s institutional deeming provision. You should talk to your attorney and your regional center service coordinator because getting covered under the DD Waiver could reduce the amount of money you receive if you win your lawsuit or settle and get money from the defendant.

The cost of Medi-Cal services provided to you through the regional center (but not regional center services that are not covered by Medi-Cal) may be deducted from your recovery. If you are covered by the DD Waiver, more services are covered by Medi-Cal. If you qualify for Medi-Cal through the DD Waiver, not only the DD Waiver services, but also time spent on your case by the service coordinator, will be deducted from the money you win.

California agrees with PAI’s opinion that the costs of Early Intervention services (Individuals with Disabilities Education Act Part C) are not recoverable.

10. Our family income is too high for our child to qualify for Medi-Cal. How can the DD Waiver help us?

If the child living with parents is not eligible for Medi-Cal because of the parents’ resources, or only eligible with a large share of cost because of parental income, Institutional deeming under the DD Waiver will enable the child to get Medi-Cal based on only his or her income and resources. Medi-Cal counts the income and resources of the parents with whom the child lives. Medi-Cal does not count the income and resources of the parents if the child is living elsewhere.

“Institutional deeming” means the child is treated as if he or she were not living with the parents, as if the child were living in an institution. Here is how institutional deeming process works:

· Ordinarily, the income and resource of parents is “deemed” (counts) against a child who lives at home with his or her parents.

· When children live in institutions, only the child’s own income and resources count when determining eligibility for Medi-Cal. This is called “institutional deeming.”

The most important purpose of the DD Waiver is to fund services that help keep children and adults out of an institution and in the community. You qualify for services under the DD Waiver only if you would qualify for services in an institution – in an ICF – and you are a Medi-Cal recipient. Institutional deeming – determining your Medi-Cal eligibility as if you were living in an institution – is a way to make sure that every child who would qualify for care in an ICF paid for by Medi-Cal can instead get services in the community paid for by Medi-Cal.

“Institutional Deeming” also applies when a regional center client does not qualify for Medi-Cal or only qualifies with a large share of cost because of the resources or income of a spouse.

11. How do I get regular Medi-Cal through institutional deeming under the DD Waiver?

To qualify for DD Waiver services, you have to be a Medi-Cal recipient. If you are not a Medi-Cal recipient or are a Medi-Cal recipient with a share of cost because of the income and resources of a parent or a spouse, institutional deeming under the DD waiver may qualify you for no share of cost Medi-Cal.

Here is what to expect. First the regional center determines that you qualify for DD Waiver services but you are not now eligible for no share of cost Medi-Cal because of parental income or resources. Then the regional center fills out a cover memo directed to the county waiver contact person.[9]</

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