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Elder Law Blog

Tuesday, June 16, 2020

Home Care Alternatives to Nursing Facilities

As the spread of coronavirus threatens elderly and disabled residents of long-term care facilities, it is important to be informed about home-based alternatives to institutional care.  Major outbreaks of coronavirus have occurred in long-term care facilities across the U.S., infecting staff as well as residents.  Deaths from these outbreaks account for one-third to one-half of total COVID-19 fatalities.  In Texas, nursing home residents account for about 45% of the state’s total fatalities. 

The epidemic has exposed lax government enforcement of infection control procedures designed to prevent the spread of contagious diseases in long-term care facilities.  Poor infection control practices are widespread in the mostly for-profit nursing home industry.  In recent years, most U.S. nursing homes were cited for deficiencies, and about half of those had persistent problems with infection control, according to the U.S. General Accountability Office.  As the epidemic reveals how disastrous such problems can be for the frail elderly, demand for home-based alternatives to nursing home care will likely increase. 

Texas Medicaid covers most nursing home residents, however it also funds home care programs for the elderly and disabled, including Community Attendant Services (CAS) and the Home and Community-Based Star Plus Waiver program (HCBS-SPW or “Star Plus Waiver”).  CAS can be instrumental in preventing or delaying the need to enter a long-term care facility, however it provides up to 20-25 hours of attendant services per week with no other benefits.  In contrast, the Star Plus Waiver program provides comprehensive home care and Medicaid benefits at the same level of care as the nursing home program, placing the two programs on equal footing.  A key difference is the Star Plus Waiver serves a limited number of people and has a waiting list for applying; whereas the nursing facility program is an entitlement, meaning that coverage is available immediately to every person who applies and meets eligibility requirements.  An exception to the rule is that Medicaid nursing home beneficiaries can request an immediate transfer to home and community-based services.

Medicaid requires states to provide nursing home benefits, but does not require them to cover home and community-based services (HCBS).  Nonetheless, states have expanded access to HCBS following a landmark ruling by the U.S. Supreme Court.  In Olmstead v. L.C. (1999), the court held that unjustified segregation of persons with disabilities in long-term care institutions constitutes illegal discrimination under the Americans With Disabilities Act (ADA) of 1990.  This historic ruling applies to all Texas Medicaid long-term care services for the aged and disabled and requires the State to provide services in the least restrictive community setting appropriate to the affected individual.  States utilize HCBS waiver programs, like the Texas Star Plus Waiver, to comply with Olmstead, however, unlike the Medicaid nursing home program which is an entitlement, Medicaid waiver programs allow states flexibility in defining target populations, designing benefits, limiting the number of persons who are enrolled, and using waiting lists. 

Olmstead requires the state to provide long-term care services in less restrictive community settings, however the state’s obligation to modify programs to achieve this goal is limited.  Under ADA regulations, the state is required to make “reasonable modifications” in programs as needed to avoid discrimination on the basis of disability, unless the state can show that the modification would “fundamentally alter” the nature of the program.  The  Olmstead court opined that the "reasonable modifications" standard might be met if a state had a "comprehensive, effectively working plan" for providing long-term care in less restrictive community settings with a "waiting list that moved at a reasonable pace."   

In Texas, the average wait-time to apply for the Star Plus Waiver is about six months, which is lower than the national average, however some states have eliminated HCBS waiting lists.  Texas has no waiting list for Medicaid nursing home beneficiaries who request to transfer from institutional care to HCBS.  While CAS does not have a waiting list, the program has strict eligibility criteria and serves a narrow range of beneficiaries.

There is growing support among advocates for Medicaid to require states to provide HCBS and prioritize HCBS over institutional services, consistent with Olmstead and ADA policy.  For now, access to nursing home care is a right in the Texas Medicaid program, while access to comprehensive home care benefits remains a privilege available to a limited number of beneficiaries who can afford to wait for services.


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Attorney Nancy Stone assists clients with Elder Law, Medicaid Planning, and Estate Planning throughout Harris County, TX. I am now based in Sugar Land and serve all of Houston, Harris County, Bellaire, Jersey Village, Cypress, West University, The Heights, Pearland, Alvin, Sugar Land, Missouri City, Kingwood, Humble, The Woodlands, Spring, Tomball, Richmond, Rosenberg Pasadena, Baytown, La Porte, Clear Lake, Texas City, Katy, Friendswood, Stafford, as well as Fort Bend County, Brazoria County, Montgomery County, Galveston County, Liberty County, Chambers County, Waller County and throughout Southeast TX.



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