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  1. What is the purpose of the proposed Consent Order and how did the proposed Consent Order come about?

The proposed Consent Order is the result of an agreement between the parties to the lawsuit. The agreement came about through mediation sessions at the Court of Appeals and negotiations that continued for several months.

The proposed Order’s purpose is to resolve key pending issues and take a forward-looking approach to providing greater access to community-based services for people with I/DD. Specifically, the proposed Consent Order would replace the November 2022 remedy order issued by the Court. It would also result in the dismissal of the State’s pending appeal. It does not resolve the case; instead, it takes a compromise approach in which the State drops its challenge to the original decision that identified a need for remedial action, and the Plaintiffs agree to a different approach to the remedy than that contained in the November 2022 order.

The proposed Consent Order is based on the Court’s earlier findings in a February 2020 decision. Key findings included:

  • “North Carolina does not have in place adequate community-based services for all individuals with I/DD who prefer a community-based setting.”
  • “The waiting list for Innovations Waiver services, called the Registry of Unmet Need, exceeds 17,000 people.”
  • “The lack of availability of Direct Support Professionals (“DSPs”) and other health care workers is a significant barrier for individuals with I/DD in need of community-based support.”
  1. What does the proposed Consent Order do?

There are several benchmarks provided for in the proposed Consent Order, as well as data collection and reporting that will inform future activity in the case. The proposed Consent Order provides that the State will:

  • Institute and/or expand, through the LME/MCOs, In-Reach efforts to identify people with I/DD who wish to transition to the community and provide the services and supports needed to effectuate those transitions.
  • Ensure timely assessment for and provision of 1915i services for people with I/DD to address some of the unmet needs reflected in the Innovations Waiver waiting list. The parties believe up to 70% of people on the waiting list will be eligible for 1915i services, which may meet some or all of their existing needs while they wait for an Innovations Waiver slot.
  • Implement and enforce standards for LME/MCOs to ensure that people with I/DD receive more authorized services and have access to consistent Direct Support Professionals (DPSs).
  • Develop and enact a comprehensive DSP strategy that helps grow and maintain a more robust DSP workforce.
  • Provide regular data and information that will enable the parties and the Court to assess progress and determine what, if any, additional measures may be needed to address the Court’s findings regarding the deficits in the I/DD system.
  1. Would the Consent Order require any new appropriations by the General Assembly?

The proposed consent order does not direct any action that would require immediate new appropriations from the General Assembly. The proposed Consent Order contemplates that the parties will advocate collectively for additional Innovations Waiver slots, which would involve requesting funding to support those additional slots. This has been a long-standing request and the General Assembly has added slots in recent budgets. It is also anticipated that future resource needs will be easier to measure and predict based on the data being gathered through the proposed Consent Order. The proposed Consent Order also leaves future remedy orders up to the Court, which could require additional resources.

  1. Does the Consent Order reduce or eliminate the waiting list for Innovations?

In the short term, no. The waiting list needs to be addressed through a combination of additional waiver slots or other services that provide necessary support for those who are waiting. The new 1915i services are expected to meet some of the existing need, but it is too soon to know how much of the unmet need they will address and how many people are either not eligible for 1915i services or will need more than it has to offer. Part of the purpose of the proposed Consent Order is to allow that information to be developed, and to identify the continued unmet need. It’s important to note that no one will be required to give up their spot on the waiting list in order to use 1915i services.

The proposed Consent Order provides that the parties will make recommendations to the judge regarding any continued unmet need. The proposed Consent Order also provides that the parties will cooperate on advocacy for additional Innovations Waiver slots.

  1. Would the Consent Order require changes to Intermediate Care Facility (ICF) admissions?

No, this order would not impact or restrict new admissions to ICFs.

  1. Will the Consent Order give people with disabilities more choices about their living arrangements?

Yes. This will happen in several ways. First, there will be In-Reach efforts for individuals currently in institutional settings to help identify people who may wish to live in different settings and to give them information on other community living opportunities. Second, the State will ensure that more individuals with I/DD are able to transition to the community, if they choose, each year for the next several years. These efforts will happen through the LME/MCOs, which will have contractual requirements to engage in In-Reach and transitions activities. To that end, the proposed Consent Order makes clear that LME/MCOs must meet their obligations: “If an individual needs services to exit or avoid institutionalization or the risk of institutionalization, the LME-MCO must ensure that all medically necessary services are reasonably provided.”

The proposed Consent Order does not change or eliminate access to any type of residential setting or service.

  1. How many people will be transitioned to community-based settings, compared with the current rate?

Some people with I/DD are transitioned from institutional settings each year. In recent years, approximately 68 people have been transitioned from institutional settings per year. For the two-year term of the proposed Consent Order, that number will increase to 88 per year by the end of the two-year term. This benchmark will be revisited along with others at the end of the two-year term of the proposed Consent Order, and the parties will propose future benchmarks.

  1. Would the Consent Order raise DSP pay? How would the Consent Order address the DSP crisis?

The proposed Consent Order clarifies that LME/MCOs must ensure access to DSPs, including through pay if necessary:

  • “Per the managed care regulations, state law, and their contracts, LME-MCOs are responsible for developing and maintaining an adequate provider network. This is a core function of managed care.”
  • “LME-MCOs must assess their rates and other practices as frequently as necessary to ensure that services are not disrupted due to provider loss.”
  • “LME-MCOs must ensure growth and continuity of the provider network and related staffing.”
  • “DHHS will monitor and assess LME-MCOs network adequacy and will, when appropriate, take corrective action if an LME-MCO does not maintain an adequate provider network, up to and including termination of the managed care contract. LME/MCOs are empowered to pay rates that are adequate to attract and retain providers. DHHS will develop and implement appropriate network adequacy standards.”

Under the proposed Consent Order, LME/MCOs will be held accountable for ensuring access to DSPs. Although the General Assembly has, from time to time, made specific provisions for DSPs and other providers in the state budget, provider access remains the responsibility of LME/MCOs. While pay is just one aspect of that responsibility, it is a critical one for those who need access to DSPs.

DHHS will be collecting and reporting on data to track LME/MCO compliance. The parties agreed on a representative service – Community Living and Supports – as the measure to be tracked. The proposed Consent Order would require that an increasing percentage of approved hours must actually be delivered; in other words, there must be DSPs available to work the hours. DHHS will track the number of hours that are unstaffed and will report that information publicly as an accountability measure.

Finally, DHHS will implement a comprehensive DSP workforce strategy, which will be subject to review by the Plaintiffs and potentially the Court.

  1. How would the Consent Order benefit providers?

Providers should benefit in several ways. First, LME/MCOs will be held accountable for provider access and availability, which should result in responsiveness to rate needs and any obstacles to provider participation:

  • “LME-MCOs must assess their rates and other practices as frequently as necessary to ensure that services are not disrupted due to provider loss.”
  • In addition: “Providers may make anonymous complaints to a designated ombudsman if an LME-MCO imposes unnecessarily onerous requirements or processes on providers.”

Second, the proposed Consent Order should create and support additional opportunities to provide community-based 1915i services.

Finally, the proposed Consent Order reiterates that NCDHHS will hold the LME/MCOs accountable in using available funds to support the full range of required services:

  • “LME/MCOs must identify and use any and all funding sources that could support an individual to reside in the community. With regard to those on an HCBS waiver, the LME/MCO must identify other supports that may be available.”
  1. How would the Consent Order help people who want to move to a community-based setting?

As noted above, there will be new requirements for In-Reach and greater access to transition opportunities. During in-reach, people can learn about other opportunities for housing the community and supports to help them live inclusively in the community.  NC will have increasing targets for transitioning people into community settings—but only if the person wants to do this.

In addition, the proposed Consent Order re-emphasizes Olmstead obligations. No one who wants to move to a community-based setting should be denied the opportunity, regardless of whether they have access to an Innovations Waiver slot.

  1. Would the Consent Order be a final order and an end to the Samantha R. litigation?

No. The proposed Consent Order is an interim measure that the parties hope will ultimately result in compliance and a resolution of the litigation. The State may seek to end the Court’s involvement if it believes that it has achieved compliance. Likewise, the Plaintiffs may seek additional orders if they believe they are necessary to address unmet needs.

  1. What happens after the two years of the Consent Order?

The proposed Consent Order would require the parties to reconvene and recommend next steps for the case. What those steps are depends on the identification of continued unmet needs and an assessment of progress on the other provisions, such as accessibility of DSP services and success rate of In-Reach and transition services. As noted above, the State can ask the Court to end the action if it is satisfied that the State is adequately providing the opportunity for community integration for people with I/DD, or the Court could issue further orders imposing new or additional requirements for the State to come into compliance.

  1. What role can the disability community play over the next two years?

Improving the I/DD service system is an ongoing, long-term effort. Community engagement will be critical in ensuring that the parties and policy makers are hearing about what is working and what issues remain. It is important for members of the disability community to continue to advocate for the needs of people with I/DD.