The Honorable Scott Jensen
Assembly Committee on Organization
211 West, State Capitol
Madison, WI 53702
Dear Representative Jensen:
The Assembly Committee on Organization has requested my opinion regarding the appropriate person or entity that must consent under the federal Medicaid program, to the community placement of an individual who currently resides in a center for the developmentally disabled.
The committee states:
Under 42 U.S.C. s. 1396n(c)(2)(C), an individual likely to require the level of care provided in an intermediate care facility for the mentally retarded may receive MA when placed in an alternative home or community-based setting, when the individual chooses the alternative setting. The federal statute has been interpreted in 42 C.F.R. s. 441.302(d) to mean that MA will be provided to a recipient in an alternative when the recipient, or his or her legal representative is, among other things, given the choice of either institutional or home and community-based services. With respect to a person who has been placed in a center for the developmentally disabled under s. 55.06, Stats., the Department of Health and Family Services has interpreted the term "legal representative," as used in the federal regulation, to mean the circuit court that has the authority to terminate the protective placement. The Federal Health Care Financing Administration in the Department of Health and Human Services has accepted this interpretation. Representatives of individuals placed in centers for the developmentally disabled contest this interpretation and contend that only a parent or a legal guardian has the authority to give consent to an alternative placement for purposes of the MA program.
Specifically, you ask the following question:
Under 42 U.S.C. s. 1396n(c), 42 C.F.R. s. 441.302(d) and ss. 46.275 and 55.06, Stats., which person or entity is required to consent to an alternative to placement in a center for the developmentally disabled for purposes of the MA program?
Title 42 U.S.C. 1396n(c) provides, in relevant part:
(1) The Secretary may by waiver provide that a State plan... may include as "medical assistance"... payment for part or all of the cost of home or community-based services... which are provided... to individuals with respect to whom there has been a determination that but for the provision of such services the individuals would require the level of care provided in a[n]... intermediate care facility for the mentally retarded....
(2) A waiver shall not be granted under this subsection unless the State provides assurances satisfactory to the Secretary that--
(C) such individuals who are determined to be likely to require the level of care provided in a[n]... intermediate care facility for the mentally retarded are informed of the feasible alternatives, if available under the waiver, at the choice of such individuals, to the provision of... services in an intermediate care facility for the mentally retarded[.]
Title 42 C.F.R. 441.302 provides, in relevant part:
Unless the Medicaid agency provides the following satisfactory assurances to HCFA, HCFA will not grant a waiver under this subpart and may terminate a waiver already granted:
Alternatives--Assurance that when a recipient is determined to be likely to require the level of care provided in an... ICF/MR, the recipient or his or her legal representative will be--
(1) Informed of any feasible alternatives available under the waiver; and
(2) Given the choice of either institutional or home and community-based services.
As initially drafted, 42 C.F.R. 441.302(d) required states seeking the waiver described above to provide assurance that the recipient or "his or her representative" would be given the choice of institutional or community-based services. 46 Fed. Reg. 48,532, 48,541 (1981). In the final rule, however, HCFA added the modifier "legal" to "representative," noting in commentary that the modifier was "intended to imply that... the representative must be designated in accordance with the laws of the State." 50 Fed. Reg. 10,013, 10,019 (1985).
The federal regulation, therefore, does not require that any particular individual or class of individuals, such as attorneys, parents, or guardians, be empowered to exercise choice on behalf of a recipient. The federal regulation looks to state law to determine the identity of the person or entity having legal authority to choose between institutional or community-based services. Under Wisconsin law, the circuit court has the legal authority and the duty to choose between institutional and community-based services for persons who have been protectively placed to centers for the developmentally disabled.
It is the policy of the State of Wisconsin to place the least possible restriction on the personal liberties and constitutional rights of developmentally disabled persons, consistent with due process and protection from abuse, exploitation and neglect. Sec. 55.001, Stats. To that end, Wisconsin's system of protective services for individuals with developmental and other disabilities is designed to encourage independent living and to avoid protective placement whenever possible. Sec. 55.02, Stats.
Guardians may consent to the admission of their wards to certain small, community-based facilities, section 55.05(5)(b)1., Stats., and guardians are among those who may petition a circuit court for protective placement. Sec. 55.06(2), Stats. No guardian, however, may permanently place a ward in a state center for the developmentally disabled or in another intermediate care facility for the mentally retarded without a circuit court order for protective placement. Sec. 55.06(1)(d), Stats. A circuit court may order placement in such facilities as nursing homes, public medical institutions, centers for the developmentally disabled, foster care services and other home placements, or other appropriate facilities. Sec. 55.06(9)(a), Stats. The individual must be placed in the least restrictive environment consistent with his or her needs. Sec. 55.06(9)(a), Stats.
Once an individual is protectively placed, the department or other agency responsible for the placement is required to review the status of the person placed at least once every twelve months. Sec. 55.06(10)(a), Stats. Where appropriate, the review shall include recommendations for placement in services which place fewer restrictions on personal freedom.
Id. A copy of the review must be furnished to the court that ordered the placement and to the person's guardian.
Id. A guardian may also at any time petition the court for a modification of a protective placement. Sec. 55.06(10)(b), Stats. As described above, although a guardian participates in the protective placement process, the circuit court determines the nature of the placement, based on the restrictiveness needed by the individual and the available resources.
Consistent with the general principles of the protective services program, it is Wisconsin's policy to relocate persons from the state centers for the developmentally disabled into appropriate community settings. Sec. 46.275(1), Stats. Any medical assistance recipient living in a state center, or any individual acting on behalf of such a recipient, may apply to participate in this community integration program. Sec. 46.275(4)(a), Stats. Participation in the program is voluntary, although certain criteria must be met. Section 46.275(4)(b) provides, in relevant part:
No person may participate in the program unless all of the following occur:
1. Consent for participation is given either by the person's parent, guardian or legal custodian, if the person is under age 18, or by the person or the person's guardian, if the person is age 18 or over, except that this subdivision does not limit the authority of the circuit court to... order a [protective] placement under s. 55.06.
Thus, in answer to the question the committee poses, under Wisconsin law a parent's or guardian's objection to his or her child's or ward's participation in the community integration program does not determine whether the child or ward will remain institutionalized, although such parent's or guardian's consent to participation in the community integration program is valid without the approval of the court. If the parent or guardian declines to consent to the community placement, the ultimate authority to choose whether a child or ward should be discharged from a center for the developmentally disabled to a community-supported living arrangement rests with the circuit court. If a circuit court determines that a community placement supported by community-based services to the individual is the least restrictive environment consistent with the individual's needs and the available resources, the court has the duty to order such a placement, even over the objections of the parent or guardian.
Wisconsin explained its position that the circuit court has ultimate authority to determine whether an individual receives community or institutional placement in its assurances to the Health Care Financing Administration, as required by 42 C.F.R. 441.302(d). HCFA accepted Wisconsin's assurance on freedom of choice. On November 7, 1996, the Co-Director of the Office of Long Term Care Services of the Medicaid Bureau at HCFA wrote the president of Wisconsin Parents Coalition for the Retarded, Inc., in relevant part as follows:
Federal regulations at 42 CFR 441.302 require States to assure the Health Care Financing Administration that an individual or his or her legal representative are given the choice of either institutional or community-based services. This regulatory requirement governing freedom of choice, however, allows States to designate, in accordance with State law, the entity with the ultimate legal authority to choose between institutional and community-based care on behalf of an individual who is not competent to make that decision.
Thus, the federal agency responsible for administering the waiver program under 42 U.S.C. 1396n(c) considers Wisconsin's assignment of ultimate authority for placement decisions to the courts to be in compliance with federal law and regulations. I conclude that under federal and state law, the circuit court which protectively placed an incompetent person to a center for the developmentally disabled has the ultimate authority to determine whether the person should continue to remain institutionalized or should receive home and community-based services.
James E. Doyle
The circuit court which protectively placed an incompetent person to a center for the developmentally disabled has the ultimate authority under state and federal law to determine whether the person should continue to remain institutionalized or should receive home and community-based services.