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cutbacks. Nevertheless, both state and federal regulations still provide recourse to non-Class Members
who are receiving substandard care or cannot get care.
For instance, non-Ricci Class Members are entitled, just as all persons in the DMR system are, to the protections under Standards to Promote Dignity: 115 CMR 5.00 (See also: Part 1 of this Advocacy Guide--Advocating Effectively on Behalf of Your Family Members.)
If a non-Class Member's services have been reduced so that he or she is no longer receiving "humane and adequate care and treatment," or he or she has lost the opportunity "to undergo normal developmental experiences" or the opportunity to maintain or integrate ties with the community, that might be grounds to allege a violation of DDS regulations.
In addition to the protections given to individual Class Members, the State must maintain compliance with federal obligations regarding services both in state-operated Intermediate Care Facilities (ICFs/MR) and in the community. Violations of these regulations can also provide a basis for initiating a complaint process with DMR.
Know the federal statutes and regulations
Federal ICF/MR statute and regulations
ICFs/MR in Massachusetts receive federal Medicaid Funding authorized by Title XIX of the Social Security Act [42 U.S.C., section 1396d(a)(15)]. The federal law and regulations require that ICFs/MR provide "active treatment," including occupational therapy, speech therapy and physical therapy. DMR permits only limited admissions to the state's ICF/MR facilities.
Federal community-based care statute and regulations
Community-based care is provided under the Home and Community Based Waiver to Title XIX of the Social Security Act. Under the Home and Community-based waiver program [42 U.S.C., section 1915(c)], states may offer an array of home and community-based services. Among the federal requirements to states such as Massachusetts that participate in the Home and Community Based Waiver program is that services be provided "with reasonable promptness" [42 U.S.C., section 1396a(a)(8)].
ICFs/MR are periodically investigated for compliance with federal standards by the state Department of Public Health. Community programs are reviewed periodically by DMR, through its Quality Enhancement Survey Tool (QUEST). If you are receiving substandard community-based care, you may be able to cite violations of applicable federal regulations.
NOTE: DDS and some advocacy organizations have taken the position that a U.S. Supreme Court ruling [Olmstead v. L.C., 527 US 581 (1999)] justifies the closing or consolidation of all remaining state ICF/MR facilities. Starting in 2003, the Commonwealth began taking steps to close the Fernald Developmental Center in Waltham and the other five remaining state facilities and to transfer the facility residents to privately provided, community-based group homes.
DMR contends that this privatization effort is justified because the Supreme Court ruled in the Olmstead case that facility-based care discriminates against persons with mental retardation. COFAR, however, has argued, in a brief filed jointly in federal court with the
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