Last spring the legislature passed a bill that will eventually add 160 private ICF/MR beds. This law does so without ensuring that individuals in developmental centers or ICF/MRs (Intermediate Care Facilities/Mental Retardation) will also have a greater opportunity to choose home and community-based services (HCBS). However, the bill did grant the state greater oversight of private ICF/MRs.

In addition, the law established a task force to “review oversight, utilization, and future need for ICF/MR services and make recommendations to the general assembly and governor by June 30, 2007.” It set the composition of this task force to include, “Three (3) of the members of the task force shall be appointed by DMRS from a list of persons provided by Tennessee Community Organizations and three (3) of the members shall be appointed by DMRS from a list of persons provided by ARC of Tennessee. The remaining three (3) members shall be employees of DMRS or other state agencies.”

You may have noticed that the law makes no provision for including persons with mental retardation on the task force and for those unaware, Tennessee Community Organizations represents private ICF/MR providers.

To date this task force has met at least three times with the last meeting taking place on November 29th. So far these meetings have focused on educating task force members on issues such as state and federal regulation, licensing and Certificates of Need, as well as protection from harm issues. The committee has not yet taken an in depth look into utilization of ICF/MRs or future need, if any, for additional ICF/MRs.

However, a couple of troubling suggestions have already been made although none led to additional discussion as they were “off the cuff” comments. These suggestions were:

  1. Amend the above law so that the 160 new beds could be also be filled by people who are not being transferred from the developmental centers. This would lead, inevitably, to an increase in the number of institutionalized individuals rather than a “no net gain.”
  2. Amend state law or regulation so that ICF/MRs can bypass the Certificate of Need (CON) requirements for medical facilities which these are. This suggest was prompted by the fact that assisted living facilities do not need a CON. However there is a great difference between the two modes. Assisted living facilities draw no state or federal dollars whereas ICFs rely almost exclusively upon public dollars for their operation. In fact, public money is regularly used to buy real estate for ICFs that are privately owned.

It’s far too soon to predict whether such suggestions could make it into the task force’s report to the legislature, but one would hope that such a recommendation would be rejected by the legislature until greater HCBS were available to residents of the developmental centers and ICF/MRS.

So far as the report to the legislature, drafting may still be several months away but it is expected to focus on three areas as contained in the law. They are 1) oversight, 2) utilization, and 3) future need. Fortunately, some have already suggested that a comprehensive review of future need must also include review of HCBS for people with MR because this would naturally impact the need, if any, for additional institutional beds.

In light of the Legislature’s stated desire in a 2005 resolution to move Tennessee away from its reliance on institutionalization one hopes that any report would include recommendations about how to reduce our state’s reliance on institutions such as developmental centers and ICFs for individuals with mental retardation. Such a recommendation would be in line with thinking at the Centers for Medicare and Medicaid Services which is also shifting its emphasis to home and community based services.

The new law on ICF/MR Expansion in PDF format — Note: the state routinely posts documents only in PDF formats which may not be accessible to people who use screen readers.

2005 TN Legislative Resolution on HCBS in PDF format

Centers for Medicare and Medicaid Services on ICF/MRs

CMS website reads in part, “The ICF/MR benefit is an optional Medicaid benefit. The Social Security Act created this benefit to fund “institutions” (4 or more beds) for people with mental retardation, and specifies that these institutions must provide “active treatment,” as defined by the Secretary …Since the implementation of the current regulations in 1988, there has been a major shift in thinking in the field of developmental disabilities. Emphasis is now on people living in their own homes, controlling their own lives and being an integral part of their home community.”

If you are interested in following the development of the ICF/MR Task Force then feel free to attend public meetings scheduled for the months ahead. Meetings are held at the Johnson House at the Clover Bottom Developmental Center in Nashville. The next meeting is set for Tuesday, December 12th from 10:30am to 3:30pm.

Other meetings have been tentatively scheduled for January 4th, January 23rd, February 21st, March 13th and March 27th.