Hinkle, Prior & Fischer, Disability Attorneys

Return Home New Jersey Compromise Bill is Harmful to Individuals with Disabilities Served Out-of-State

By: Hinkle, Prior & Fischer, Attorneys at Law

Yesterday we broadcast a legislative update and action alert regarding Senate Bill 2600 based on a reported compromise between the New Jersey Legislature and the Governor regarding DDD’s Return Home New Jersey (RHNJ) Initiative. That alert can be found at https://hinkle1.com/state-changes-course-on-return-home-new-jersey/.

Now that the full text of the compromise bill has been released to the public, and we have been able to analyze it in detail, we find several troubling provisions beyond those we discussed in yesterday’s alert.

The compromise bill, adopted as the Senate Committee Substitute for S-2600, can be found at this link.

Although this firm testified in favor of this bill as initially written and introduced in December 2014 (https://hinkle1.com/testimony-in-favor-of-s-2600/), based on the myriad of substantial changes, we no longer support this bill as amended. The bill should be further amended or its advancement through the legislative process should cease.

A vast majority of the discussion about the compromise bill focused on adjusting the amount of time a person with a disability must be in an out-of-state placement funded by DDD in order to be “grandfathered” or exempt from DDD’s RHNJ initiative. In short, the new bill requires a person to be served in an out-of-state facility for 25 years or 50% of his or her life, whichever is shorter. We believe this hurdle is too high, and far too many people will fall outside these limits.

However, even if an individual falls within these limits and will otherwise enjoy the protections this compromise bill has to offer, there are several important exceptions which allow DDD to force the removal from an out-of-state placement. Some of the more troubling exceptions include:

The individual does not continue to be served by the same out-of-State provider in the same location after the effective date of this act as the out-of-State provider who served the individual prior to the effective date of this act.

This provision can be interpreted in a couple of ways: If a person is served at “Forest View” (a fictitious provider agency name) and she needs to move to “Hill Crest” (another fictitious provider agency) both located in the State of New York, then DDD would be able to transfer the individual back to New Jersey regardless of the appropriateness of the in-state placement. In another example, an individual is served at the “Forest View” program, which serves individuals in “Spruce House” and “Birch House.” The individual resides in “Spruce House,” but would be better served and should be moved to “Birch House.” It is unclear whether, under this provision as written, DDD may be able to force a return to New Jersey because they are not in the same location.

The individual or the guardian of the individual, as applicable, is not in compliance with the provisions of State regulations at N.J.A.C.10:46D-1.1 et seq., concerning contribution to care and maintenance requirements, within 90 days of the effective date of this act.

In our experience, DDD is often remiss in billing individuals and guardians for their contribution to care (C2C). Sometimes DDD will go years before billing the individual for the first time. As a result, individuals will often receive notices for back payments totaling tens of thousands of dollars. The individual, of course, has used their social security check on an ongoing basis to provide for their other supplemental needs and the money no longer exists to give to DDD. This provision would enable DDD to force the removal of an individual from an out-of-state placement funded by DDD as the result of DDD’s own derelict conduct. Nothing could be more absurd. Yet under this compromise legislation such an approach is quite possible and – based on our experience in dealing with DDD – quite likely.

The primary residence of the legal guardian of the individual is not located in this State on the effective date of this act; or, in the case of co-guardianship, the primary residence of each co-guardian is not located in this State on the effective date of this act.

This is particularly troubling and in our opinion, completely unconstitutional. Nevertheless, this provision will create a significant problem for families. Let us consider this from a practical point of view: For example, parents placed their daughter, Jessica, in a DDD funded placement at “Forest View” when she was 25 years old and the parents (who are also the legal guardians) were 50 years old. Twenty-five years later, the parents, now 75, move to Florida. Under this provision, DDD will be able to force Jessica back to New Jersey to the complete shock and dismay of her elderly parents and despite the trauma to Jessica. If this scenario isn’t bad enough however, consider this: Jessica is placed at “Forest View” at 25, her parents remain in New Jersey and then die at age 85. They appoint their son, Robert, as successor guardian under their will. Robert is now 50, has a spouse and 3 children, and is a successful professional living near Los Angeles, California. Under this provision, through no fault of Jessica’s, Robert’s, or their now deceased parents’, DDD can force Jessica (who is now 60 years old and has been served at “Forest View” for 35 years) to return to New Jersey. This is true regardless of whether the proposed placement is appropriate or whether Jessica will suffer harm in the process.

The total cost of the out-of-State residential placement for the individual exceeds the cost of an in-State residential placement taking into account the funds the State would receive for the in-State placement of the individual from a federal Medicaid waiver under section 1115 or section 1915(c) of the federal Social Security Act, as applicable, as determined by a uniform assessment tool developed by the Division of Developmental Disabilities.

This provision is the most detrimental, as it allows DDD to move an individual who meets the 25 years or 50% of their lifetime criteria from an out-of-state placement to an in-state placement, based solely on a cost saving to the State. For example, DDD currently funds Jessica at Forest View at a total cost to the state of $150,000. DDD assesses Jessica using its uniform assessment tool and determines an in-state placement would require funding of $200,000 less the reimbursement rate to the State of New Jersey from the federal government. If we use a 40% reimbursement, the cost of the in-state placement to the State of New Jersey would be $120,000, thereby allowing DDD to uproot Jessica from her home and force her to return to New Jersey – all for relatively meager cost savings.

We applaud the families and legislative leaders who have championed this fight to protect the rights of New Jersey’s most vulnerable citizens, including the most basic and fundamental right of being secure in one’s home. Once again, we are disappointed and saddened that in the end cost considerations outweigh New Jersey’s dedication to ensure a life of dignity to its citizens with disabilities. Therefore, this firm no longer supports this bill as amended and urges its immediate amendment or, for the good of all effected by the RHNJ initiative, this bill must not be allowed to become law.