Update: Christensen et al. v. Miner et al. settlement in Utah

During the 2019 General Legislative Session, the Utah Legislature passed a joint resolution approving a settlement agreement in the case of Christensen et al. v. Miner et al., a case related to care settings for Utahns with intellectual disabilities.

State defendants in the case presented an update on the settlement, which is now being filed in court, last week at the first post-session meeting of Utah’s Health and Human Services Interim Committee.

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In January 2018, the Disability Law Center and a class of Medicaid eligible individuals living in intermediate care facilities (ICFs), but who could be living in community-based settings, sued the State.

Specifically, plaintiffs sued the Department of Health and Executive Director Dr. Joseph Miner, the Department of Human Services and Executive Director Ann Williamson, the Utah Division of Medicaid and Health Financing and Director Nathan Checketts, and the Utah Division of Service for People with Disabilities and Director Angie Pinna.

Under Utah law, “intermediate care” is inpatient and provided 24 hours per day, to residents who need licensed supervision but don’t require continuous care from nurses. According to the Office of Legislative Research and General Counsel, plaintiffs argued that they weren’t being serviced in the least-restrictive setting appropriate for their needs.

“We’ve had funding from Medicaid to transition about 15 individuals who are in this nursing home-like setting into home- and community-based services,” Miner said at the committee meeting. “That’s not satisfactory to the Disability Law Center. It is true that many more than that want to move into home- and community-based settings, which is less restrictive than…these intermediate care facilities.”

At last week’s interim committee meeting, Miner, Williamson, Checketts, and Pinna presented lawmakers with an update on implementation of the settlement.

In their settlement, the parties agreed that the state would move about 300 interested individuals from ICFs to home- and community-based settings over six years, prioritizing transition for people younger than 22, among a list of other agreements.

Other parts of the settlement, according to the Office of Legislative Research and General Counsel, include DOH and DHS providing educational materials and information about home- and community-based settings, reducing the number of licensed ICF beds across the state to 465, and pursuing statutory changes for a permanent moratorium on licensing new ICF beds.

“What has been the motivation of these negotiations in this settlement is a respect and a value for choice and supporting individuals in gaining experience to make informed choice…” Williamson said in the meeting. “An educational approach has been essential to this, with detailed, person-centered plans for any individual and every individual whom will meaningfully engage within the ICFs to help with an understanding of these options — going forward, what is in their best interest as well as the best interest of their caregivers.”

Williamson said each individual will have a support coordinator who meets with them face-to-face at least once per month, provides ongoing assessments, and follows up to make sure their needs are being met and they’re satisfied in a new environment.

The settlement was subject to funding from the Legislature, which included a $7.3 million appropriation to follow through on the agreement in the final budget.

Image: Utah State Legislature, Compendium of Budget Information

 

“That allows us to dramatically restructure how we’ve been doing this process,” Checketts said in the meeting. “We’ve historically had more interest in moving out than we’ve had funds available, and so we’ve had to go through a prioritization and a selection process to identify which individuals might be able to move in any given year. With the funding that you’ve given us, we introduced an administrative rule — that’s out for public comment right now and will be effective by July 1 — where we will be able to take any individual in these facilities that expresses an interest to move, and we’ll be able to begin working them right away on a transition plan.”

The goal for this year is to transition 49 interested people out of ICFs — the defendants reported that 37 people were moved to the community, four will move by the end of this month, and eight others are in transition. That goal increases to 150 for 2020, then falls to 25 interested people per year for years 2021 through 2024.

When Rep. Stewart Barlow asked for reasons people want to move out of ICFs, Pinna mentioned the option for individuals to move closer to family, to live in a place with fewer people, proximity to interests they want to engage in, and greater independence.

The environments where these individuals have moved varies, Pinna said in the meeting, with some moving into their own apartments with staff who visit and help with specific tasks, and others moving in with small groups.

“Of the people we’ve moved out this year, one of the people has moved home with their family,” Pinna said.

Monitoring the people who are transitioning, Pinna said, requires tools that help people on the ground assess whether needs are being met.

“Both the Department of Health and the Department of Human Services, we’re in the process of hiring the staff that we need to be able to implement this,” Pinna said.

That includes two nurses who will work with ICFs and the community, to help bridge medical needs during transition. Pinna said continued implementation also requires technical assistance from CMS and developing more educational materials.

Not all of the elements of implementation are settled quite yet. For one, Pinna said they’re looking at what other states are doing to meet the need of nursing services for people who are transitioning out of ICFs, and what those services cost.

Another area for further progress: Checketts mentioned a funding proposal to create a quality-improvement incentive for ICFs in order to maintain a provider network for people who want to remain in those settings — the Legislature did not fund that this year.