Home

What is HCS?


Home and Community-Based Services, otherwise known as HCS in Texas, is a Medicaid waiver program for individuals with developmental disabilities such as mental retardation, autism, and other related conditions.

Under Section 1915(c) of the Social Security Act, Home and Community-Based Services Waivers provides the United States Secretary of Health and Human Services authority to waive Medicaid provisions in order to allow long-term care services to be delivered in community settings. This program is the Medicaid alternative to providing comprehensive long-term services in institutional settings (i.e. Intermediate Care Facilities for Persons with Mental Retardation).

This waiver allows MR/DD persons who meet the Intermediate Care Facility for Persons with Mental Retardation (ICF/MR) level of care to remain living at home and in the community. Services offered under this waiver include: case management, adaptive aids, minor home modifications, day habilitation, counseling & therapies. The HCS Program provides services to individuals with mental retardation who either live with their family, in their own home, in a foster/companion care setting or in a residence with no more than four individuals who receive services. The HCS Program provides services to meet the individual's needs so that he/she can maintain him/herself in the community and have opportunities to participate as a citizen to the maximum extent possible. In the HCS Program, individuals pay for their room and board either with their SSI check or other personal resources.

Other Medicaid waiver programs that serve individuals with disabilities in Texas are Community Living Assistance and Support Services (CLASS), Texas Home Living (TxHmL), and the Deaf/Blind Multiple Disabilities (DBMD) waiver program. ICFMR is an institutional straight Medicaid program and is not considered a waiver program.

Sources:

  • Centers for Medicare and Medicaid Services
  • University of California, San Francisco’s Center for Personal Assistance Services (PAS)

History of Services for People with Developmental Disabilities in Texas

Before the State School System was established, Texans with developmental disabilities usually had dim fate. If their parents had the resources and the will, they were cared for at home as long as possible. But more often than not, these individuals were kept in places like barns, shacks at the edge of the property, or much worse. The film Slingblade starring Billy Bob Thorton chronicles how many individuals with developmental disabilities or perceived disabilities were treated by their families.

In 1915, the Texas Legislature passed House Bill 73 to create Austin State School, the first facility specifically for Texas with developmental disabilities. In 1917, Texas opened what is now known as Austin State School, the first of 15 state schools. The initial capacity of the school was 65 residents, primarily female, but over the years it became home to more than 2,000 residents with everything from a working dairy to a hospital on its 95 acres across from Camp Mabry in the Central Austin neighborhood known as Tarrytown.

Staff of this new administration reportedly combed the state for abused and neglected individuals with developmental disabilities. They found quite a few that needed placement and eventually 14 other state schools opened. In addition to Austin State School, there is Abilene State School, Brenham State School, Corpus Christi State School, Denton State School, El Paso State Center, Lubbock State School, Lufkin State School, Mexia State School, Richmond State School, Rio Grande State Center, San Angelo State School, and San Antonio State School. Travis State School, located just outside of Austin, and Fort Worth State School were closed in 1995 as a result of the Lelsz v. Kavanaugh suit. To see more about how the Texas State School System operates go to http://www.dads.state.tx.us/services/stateschools/

Lelsz v. Kavanaugh
Lelsz v. Kavanaugh became a landmark decision for Texans with MR/DD. On November 27, 1974, several residents at Texas state schools filed a class action against Texas officials, alleging that conditions at those schools violated their constitutional and statutory rights. While people who lived in state schools in the latter half of the twentieth century seem to have had mixed experiences, many tend to paint a dismal picture when describing the conditions during that time period. They cite overcrowding, an unsafe staff to client ratio, segregation, as well as rampant abuse and neglect.

The named plaintiff was a client at Austin State School named J. Lelsz. He is reportedly a very physically aggressive individual. Because of these behaviors, he often requires restraints. However, Lelsz’s father believed that the restraints used on him at Austin State School were too restrictive and that he was often abused as a result of his difficult behaviors. The named defendant in Lelsz v. Kavanaugh was the medical director at Austin State School as well as some other Texas Department of Mental Health and Mental Retardation (TDMHMR) officials.

The main complaint brought forth by the plaintiffs sought “to vindicate, for themselves and for all members of the class they represent, their right to habilitation, the right to humane and decent living conditions, the right to procedural due process and fairness of admission, the right to an equal and adequate opportunity to realize their developmental capacities, the right to fair procedures in the determination of habilitative settings appropriate to their needs, and the right to habilitation in the least restrictive environment possible” (AltLaw, 2008). More specifically, the complaint asked that "Defendants be ordered ... to provide Plaintiffs with community based state-operated facilities for the mentally retarded which will so provide for the treatment of Plaintiffs in the least restrictive environment” (AltLaw, 2008). The state argued that people with mental retardation have no constitutional right to community-based services.

However, one group that called themselves the Parent Association for the Retarded of Texas (PART) attempted to intervene in Lelsz v. Kavanaugh several times before it was finally settled. PART argued that not all residents of the state schools had similar sentiments about their services at the state school as the Lelsz group and did not want to be part of the class. PART instead argued for a particular policy, specifically institutional reform as opposed to closure, instead of legal rights. In response to PART, the plaintiff amended their complaint once again to state that they “seek to enforce for themselves and all others similarly situated, the right to be free from state-imposed segregation, the right to receive treatment and habilitative services in the least restrictive environment and in the least restrictive manner, the right to a normalized living environment, the right to humane and decent living conditions, [and] the right to an equal and adequate opportunity to realize their developmental capacities ..." (AltLaw.org, 2008). In the end, the US Court of Appeals for the Fifth Circuit rejected PART and two class members as would-be interveners (Herr, 1989, 371).

In 1991 Judge Barefoot Sanders ruled in favor of Lelsz, et al. requiring Texas to provide community-based services for people with MR/DD. There are several elements in the Lelsz v. Kavanaugh settlement. First, a governor-appointed task force was established to assess the situation in all state schools. This task force eventually led to the closure of Travis State School in 1995 and Fort Worth State School in 1996 and relocated several hundred residents of other state schools into community services (Sorg, 2007). Second, TDMHMR was required to move individuals from state schools to community settings at a rate of 600 persons within two years. Over the four-year period of the settlement agreement, 1,286 individuals moved from state schools to community settings (Texas Department of Aging and Disability Services, 2008).

The Lelsz lawsuit was dismissed in November 1995 based on a determination that the state had fulfilled the terms of the 1991 settlement agreement. The named plaintiff J. Lelsz now reportedly lives in his own group home on the grounds of Richmond State School with around-the-clock one-on-one staff attention. However, advocates for the MR/DD population were not completely satisfied with the outcome and progress of Lelsz and initiated another lawsuit several years after Lelsz was dismissed.

Click here to read a New York Times article from 1987 on a similar suit brought against Fort Worth State School: http://query.nytimes.com/gst/fullpage.html?res=9B0DE6D9103EF937A2575BC0A961948260

McCarthy v. Hawkins
The litigation in McCarthy v. Hawkins was originally filed in federal district court in late 2002 against the Commissioners of the HHSC. The Arc of Texas and Advocacy, Inc. filed the lawsuit on behalf of Texans with MR/DD who have spent years on waiting lists for Medicaid waiver programs. McCarthy aims to bring relief to the thousands of Texans with MR/DD on waiting lists for community-based services. When the lawsuit was filed in 2002, more than 15,000 individuals were on waiting lists for the HCS and CLASS programs and this year that number is at over 40,000 (Arc of Texas, 2008). Texas has one of the largest and slowest moving waiting lists for HCS in the country (Bragdon, 2007). The lawsuit uses language established in the June 1999 United States Supreme Court decision entitled L.C. & E.W. v. Olmstead. Davis, et al (2008) highlight this decision:

“In L.C. & E.W. v. Olmstead, the court ruled that states are required to provide community-based services for people with mental disabilities if treatment professionals determine that it is appropriate and the affected individuals do not object to such placement. The Court further concluded that states are responsible for community-based placement if they have the available resources to provide community-based services. States that maintain waiting lists must make a good faith effort to move those on the list to community programs at a reasonable pace.”

The named defendant is Albert Hawkins, currently head commissioner of the HHSC, as well as all of the commissioners of HHSC’s departments. The named plaintiff is one of seven plaintiffs who have been on Medicaid waiver program waiting lists for several years. The complaint charges that Texas has failed to “provide the plaintiffs and other Texans with mental retardation and developmental disabilities with community-based living options and services to which they are legally entitled that meet their needs. The complaint charged that about 17,500 people with mental retardation were waiting for community waiver services. The plaintiff’s seek certification of a class that would include all persons eligible to receive Medicaid waiver services including 11,000 individuals served in ICF/MR who are eligible to be considered for the kind or residential services that will enable them to become more fully integrated into the community” (Arc of Texas, 2008).

Furthermore, the McCarthy suit also used legal arguments based on the Americans with Disabilities Act in an attempt to compel the State to take immediate and affirmative action to address the needs of the individuals on the CLASS and HCS waiting lists.

On August 4, 2006, a multifaceted settlement agreement was reached with state officials. First, the seven named plaintiffs in the case were all offered Medicaid waiver program slots. Second, the HHSC will conduct an informal assessment of individuals requesting HCS and/or CLASS services and who are placed on the waiting lists. The assessment will obtain “information about the functional status and diagnosis of the individual, ensure that the individual is presented information about all services for which he/she might be available and facilitate placement of the individual on the correct waiting lists(s)” (Arc of Texas, 2008). The purpose of the aggregation of such information will also be “valuable to the state in developing trend and need data that can inform the development of public policy in the future” (Arc of Texas, 2008).

Third, for the next three (3) biennial legislative sessions (the 80th, 81st, and 82nd), HHSC will include in its Legislative Appropriations Request (LAR) a request for adequate funding to: “ (1) Offset the estimated increase in the number of persons listed on the HCS and CLASS waiver waiting lists during the preceding biennium. 
(2) achieve a five percent (5%) to ten percent (10%) reduction in the number of persons listed on the HCS and CLASS waiver waiting lists each year” (Arc of Texas, 2008).

In 2005, under pressure by the McCarthy lawsuit, the 79th Legislature funded more than 2,800 new HCS slots and 1,600 new CLASS slots (Horn, 2008). This budgetary decision represents more than $100 million in new service funding for Texans who had been on the HCS and CLASS waiting lists the longest (Arc of Texas, 2008). Since 2005, professionals in the field have observed even larger rollouts for HCS slots. However, while HHSC and the legislature are abiding by the terms of the McCarthy settlement, and even greater number of individuals with MR/DD are coming onto the waiting lists than those getting slots. So, the sizes of the waiting lists are not actually decreasing at a dramatic rate.

Bibliography

Back to top