Scott Mendel, Chairman of Together for Choice, wrote to Allison Stark, Illinois’ Director of the Department of Developmental Disabilities, regarding Illinois' Interpretation of the Settings Rule.
From: Mendel, Scott Sent: Thursday, February 6, 2020 12:07 PM To: Stark, Allison <Allison.Stark@Illinois.gov> Subject: Presentation at the ARC Leadership Conference
Allison: I reviewed the powerpoint that you presented at the ARC Leadership Conference and I have concerns that you have incorrectly portrayed the Settings Rule. In particular, on the eleventh slide you describe the settings that you claim CMS “requires review” because they “may isolate individuals.” The second, third and fourth bullet points on that page identify settings “designed specifically for people with disabilities,” settings “comprised mostly of people with disabilities and staff,” and “sites providing multiple types of services to people with disabilities in one location.” The settings you identify in these three bullets are no longer presumptively isolating under the new guidance issued by CMS last March. Here is a link to the new guidance: https://www.medicaid.gov/sites/default/files/Federal-Policy-Guidance/Downloads/smd19001.pdf Rather, the settings you describe are ones contained in CMS’s old guidance issued in 2014, which was explicitly revoked by CMS when it issued its new guidance.
Question and Answer 2 of CMS’s March 2019 guidance lists three factors that CMS will consider in determining whether a setting “may have the effect of isolating individuals” and therefore requires review. Those factors are:
Due to the design or model of service in the settings individuals have limited if any opportunities for interaction in or with the broader community. CMS goes on to explain that whether such opportunities are provided is to be determined by the individual’s person-centered plan and the policies and practices of the setting.
The setting restricts beneficiary choice to receive services or engage in activities outside the setting.
The setting is located separate and apart from the broader community AND does not facilitate beneficiary opportunity to access the broader community “consistent with a beneficiary’s person-centered service plan.”
CMS concludes Answer 2 of the new guidance by saying: “The above response replaces in totality prior guidance published on the criteria of an isolating setting . . . . The criteria of isolating setting have been revised and examples of settings that may have isolating effects have been removed.”
What is clear from the new guidance, and CMS has said as much in its public statements on the new guidance, is that determining whether a setting may be isolating and require review is no longer based on its size, location, or type. Rather as the above three factors state, review is only required if the individuals served by a setting have limited opportunities for engaging with the broader community. And whether that is the case is not determined by the design of the setting, whether it serves mostly individuals with disabilities, or whether it offers multiple services in one location, as you assert in your powerpoint. Rather, the key is whether individuals are receiving the type and extent of community engagement they desire as reflected in their person-centered service plans.
It is critically important that Illinois not misinterpret or misapply the Settings Rule. Doing so will limit settings options for individuals with disabilities and limit their choice of settings. As we have discussed, many individuals with developmental disabilities, especially those with significant needs like my daughter, find disability specific settings to best meet their needs and preferences. Those options should not be foreclosed and those choices should be respected and adequately funded.
I respectfully request that you revise page 11 of your powerpoint to accurately reflect CMS’s current guidance. I also request that you inform the ARC and others of the change. The ARC has already widely circulated your powerpoint and I think it is important to find some way to inform the public of the correct application of the Settings Rule.
As always, I am happy to discuss.
Scott M. Mendel