TESTIMONY OF JENNIFER HONIG

STAFF ATTORNEY, MENTAL HEALTH LEGAL ADVISORS COMMITTEE

SUBMITTED TO THE JOINT COMMITTEE ON HEALTH CARE

MARCH 26, 2001

I am Jennifer Honig, Staff Attorney at Mental Health Legal Advisors Committee (MHLAC) and Co-Chair of the Coalition for the Legal Rights of People with Disabilities (CLRD). On behalf of these organizations, I urge your support for An Act Providing for Consumer Choice in Long Term Medical Services, S. 474 & H. 1030. This legislation would require the Commonwealth to provide people with disabilities on federally funded medical assistance with services in the most integrated setting, as is current law under the Americans with Disabilities Act (ADA).

In June 1999, the U.S. Supreme Court interpreted the ADA to make clear the obligation of states to provide services for individuals with disabilities in the community. In Olmstead v. L.C., 119 S.Ct. 2176 (1999), the Court affirmed that the unjustified segregation and institutionalization of people with disabilities by states constitutes unlawful discrimination in violation of the ADA's "integration mandate." For people in hospitals and other institutions, the Court also suggested that a state could be in compliance with the ADA if it demonstrated a "comprehensive, effectively working plan" for providing services to individuals with disabilities in the most integrated setting and a waiting list that moved at a reasonable pace.

Recognizing the significance of the Court's decision, the federal government reacted quickly and positively. The Department of Health and Human Services (DHHS) took pro-active steps to educate state agencies as to their obligations to implement Olmstead. The administration issued a series of letters to the Division of Medical Assistance and other State Medicaid Directors, which both described these obligations and announced the availability and development of federal programs through which states could gain resources to implement the integration mandate. For example, DHHS announced the availability of new federal grants from the Health Care Finance Administration to enable individuals to move from institutional to community-integrated living. (I have submitted, together with my testimony, the most recent DHHS communication that provides guidance on Olmstead implementation.)

Many state governments have begun to implement Olmstead. A number of states, such as Hawaii and New Mexico, have done so by pursuing a comprehensive planning process both to evaluate the extent to which individuals with disabilities remain institutionalized and to plan for more appropriate placements. The creation of such a plan helps states determine the scope of unmet need for community-based services and develop a process by which to meet resource gaps. Planning allows states to evaluate which dollars currently used in institutional settings might be transferred to community-based settings. For example, Medicaid funding, for which many people with disabilities are eligible, frequently can follow people from institutions to the community. In certain cases, states must pursue a waiver application from the federal government to effect this funding shift. States also may address funding gaps through the full pursuit of federal grant dollars.

It has been nearly two years since the Supreme Court decided Olmstead. While the decision has been enormously important to people with disabilities of all kinds, it is particularly relevant to those MHLAC represents, individuals with psychiatric disabilities. In Massachusetts, many individuals with mental illness remain unnecessarily confined in hospitals and nursing homes or inadequately housed in settings that place them at risk. This situation is acknowledged by both state agencies and advocacy groups. Our experience in seeking community-based placements for these individuals suggests that the state is not fully complying with Olmstead. In large part, this failure occurs because the state does not have the resources to do so or has not sufficiently shifted the resources it does have to the community. Further, the state does not appear to have a begun the comprehensive planing process envisioned in Olmstead to address these gaps.

In order to comply with Olmstead and redress the ongoing and inhumane institutionalization of people with disabilities in the Commonwealth, we strongly believe that state legislation is now needed. Such legislation, modeled on Senator Berry and Representative Kennedy's bill, should direct state officials to make all reasonable efforts to apply for and pursue federal funding to maximize the ability for individuals to live in the community. Such legislation should also direct state officials to allow individuals to carry their Medicaid dollars from institutions to the community. We urge you to support Senate 474/House 1030, which includes both these requirements.

Both CLRD and MHLAC recognize Olmstead implementation as a bold and ambitious undertaking, and we look forward to working with you in crafting legislation that will address these important issues.

Thank you for your consideration.

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