A state provider of intellectual and developmental disability services made its case Wednesday, asking a Lancaster County judge to block the enforcement of a Nebraska Department of Health and Human Services “guidance” requiring all providers to go to a single training system.
“Your honor, this case is about an agency making law on its own,” said attorney Allison Daniel, of Pacific Legal Foundation, a national public-interest law firm that defends against government overreach, which represents Nebraska-based Integrated Life Choices.
At issue was a “guidance document” issued last year by the Division of Developmental Disabilities, a division of HHS.
Daniel said Provider Bulletin 24-01 wasn’t guidance at all. Rather, it required every certified provider of developmental disabilities programs in Nebraska to throw out their approved safety intervention program and switch to “a single, costly, proprietary system” called the Mandt System.
She called it a radical departure from the department’s longstanding practice of approving multiple curricula, including “Core Supports,” a custom training program Integrated Life Choices developed and has been using since 2021 to train staff to manage behavioral crises, like aggression or self-harm.
Daniel said their training, in which they’ve invested more than $100,000, has reduced incidents and improved safety.
“Yet without rulemaking, without notice and without authority, the department revoked those approvals and forced every provider into Mandt,” she said.
Integrated Life requested HHS review the bulletin, which the department denied. And on July 2, Daniel said, the department suspended all new client referrals to Integrated Life, the “lifeblood of its operations” as a Medicaid-reimbursed provider.
“We’re here today asking the court to stop enforcement of this unlawful mandate,” Daniel said.
She said the one-size-fits-all mandate offloads its responsibility onto a private vendor and abandons the department’s duty to evaluate such training.
Assistant Nebraska Attorney General Tyrone Fahie said the plaintiffs just argued for injunction.
“Let’s walk through why that should be denied,” he said.
He said to get a preliminary injunction, Integrated Life bears the burden to prove their case is likely to succeed on its merits, that they will suffer irreparable harm if it isn’t granted and that the balance of harms and public interest favor its position.
“They have not met this burden,” Fahie said.
He said the question squarely before the court is whether the department is acting within their delegated authority.
He argued it was and pointed to department rules and regulations required of certified providers, which say all employees must be trained in division-approved emergency safety intervention (ESI) techniques.
“Division-approved in the key language here,” Fahie said. “It’s the language that gives DHS the discretion to approve which ESI techniques are going to be applicable.”
He said the Legislature had an opportunity, if they believed that the discretion was overbroad or too strong, to repeal it. They did not.
Now, Fahie said, Integrated Life was asking the court to sub its judgment for administrative discretion delegated to it from the Legislature.
As to the Mandt System specifically, he said there was more than a rational basis for approving it. Before it, some providers were training in martial arts, which put staff and developmentally disabled participants at risk.
“There is a real need for uniformity,” he said.
Lancaster County District Judge Matthew Mellor took the matter under advisement and said he would get an order out in a timely manner.
In January, Sen. Dan Quick, a Democrat from Grand Island, introduced a bill (LB565) seeking to rescind all bulletins issued by HHS’s Division of Developmental Disabilities since July 2022 and pause future bulletins for two years.
At a public hearing on the bill, Quick said HHS bulletins had imposed “significant administrative and financial burdens” on care providers without additional funding to implement the new requirements.
The bill stalled in the Legislature’s Health and Human Services Committee.
Reach the writer at 402-473-7237 or lpilger@journalstar.com.
On Twitter @LJSpilger and Bluesky @ljspilger.bsky.social
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