American Bar Association Issues Resolution on HCBS

The American Bar Association (ABA) recently adopted and issued a new resolution urging “the federal government to eliminate the Medicaid bias favoring institutional settings by amending policies in order to mandate that states and territories implement home and community-based services under their Medicaid State Plans.”

Through its resolution, ABA urges passage of the Home and Community-Based Access Act of 2021 or similar legislation. The accompanying report draws attention to Olmstead v. L.C. and Title II of the Americans with Disabilities Act, prohibiting disability discrimination and affirmatively finding that unnecessarily institutionalization constituted discrimination. Accordingly, Title II requires public entities to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”

Notwithstanding the integration mandate, Federal Medicaid law mandates that all states must provide nursing facility services to beneficiaries 21 years old and older.12 However, Medicaid beneficiaries can only access Medicaid-funded home health services if they meet the eligibility criteria for admission to nursing facilities, based on their functional abilities and limitations. This is known as the Medicaid institutional bias, because without access to home health aide services under the Medicaid program to assist people with their activities of daily living (ADLs), people with disabilities face the prospect of segregation in institutions. Among the mandatory components of home health services are nursing services, home health aide services, medical supplies, and equipment (such as mobility devices, including wheelchairs).

In contrast, home and community-based waiver programs exists as an optional benefit with limitations to eligibility and availability. In its resolution, the ABA urges amending policies to mandate implementation of home and community-based services under Medicaid State Plans, to allow choice and support the right to community integration.