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Among the many challenges faced by States are lawsuits brought by individuals, advocates, or the federal government to decertify, shut down or fundamentally transform state-operated psychiatric facilities or intermediate care facilities for the mentally retarded (ICF/MRs). These suits can arise under the conditions for participation in the Medicaid program, the Civil Rights of Institutionalized Persons Act (CRIPA), or the Americans with Disabilities Act (ADA), and the Supreme Court’s Olmstead decision. We have successfully defended a number of decertification and disallowance actions that have been brought by CMS against large, state-operated ICFs/MR. These actions typically imperil millions of dollars of federal funding for each affected ICF/MR. We have expertise in demonstrating inaccuracies and deficiencies in federal survey findings as well as challenging improper interpretations of the “active treatment” requirement. For institutional reform cases, our wide-ranging experience in working with state governments and the Medicaid program enables us to help a State to develop the factual underpinning to its case as well as address the broad range of constitutional and statutory issues that these cases present. We also can help state officials to assess the various opportunities to increase home- and community-based services, either through the state plan or through Section 1915 waivers, to achieve an equitable and realistic settlement, and, if necessary, to defend the case in court.
Representative Matters
- We have advised a number of States on the development and implementation of their comprehensive Olmstead plans.
- We defeated efforts by CMS to disallow millions of dollars of Medicaid funding to ICF/MRs operated by the states of Iowa, Maryland, and New Jersey because of the alleged failure to provide “active treatment” to residents of the state-operated facilities.
- We represented the Louisiana Department of Health and Hospitals in an Olmstead suit that resulted in a workable settlement to increase home- and community-based services over five years.
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