September 9, 2010
The Honorable Deval Patrick
Governor, Commonwealth of Massachusetts
State House
Boston, MA
Dear Governor Patrick;
We are writing on behalf of the Disability Policy Consortium, a statewide disability organization, representing the needs of the Commonwealth’s nearly two million citizens with disabilities. Specifically, we are writing about your Press Release recognizing the 20th anniversary of signing of the Americans with Disabilities Act.
Your remarks only briefly touched on one of the most important issues regarding the ADA and its implementation. The Supreme Court’s Olmstead decision regarding the ADA provides that individuals with disabilities have a right to community based services for individuals with disabilities “who can handle and benefit” from such services. You only made a passing reference regarding this decision by referring to the recent waiver for individuals with acquired brain injuries. However, for the vast number of persons with disabilities who still are not covered by any community based services there are still no options available.
In addition, you did not mention progress towards implementing the state’s Olmstead Plan which is a requirement of the decision. The Commonwealth’s Plan is merely a series of goals and objectives rather than specifics for progress towards meaningful deinstitutionalization. Most importantly even this “plan” has had little success and the broad 1115 waiver which was intended to provide for a solution for many of those still not covered by community based options was canceled nearly two years ago with no follow up options actively being considered. The fact that the Affordable Care act offers new home and community based options underscores the need to revisit the Commonwealth Community First Olmstead Plan and add additional detail.
In the DPC’s recent Olmstead Initiatives report we made a number of recommendations which address the need to fulfill the Commonwealth’s responsibilities under the Olmstead decision and the ADA. Some of these include:
· ADA compliance must be elevated to a priority within the highest levels of state government.
· There must be a reassessment of the imbalance of access to community based services by individuals with certain disabilities such as adult onset and a plan developed to address said imbalance. Currently, more comprehensive home and community based services are only available as waiver services to elders, people with intellectual disabilities, and those with mental health and substance abuse. People with brain injuries also receive waiver services as a result of a lawsuit.
· DHCD should implement a mandate that all new or renovated construction meet both universal access and visit ability guidelines.
· The Commonwealth should immediately submit a plan and implement "Money follows the person" as outlined by CMS and the budget reduction act of 2005
· The Commonwealth should review its present practices for medical care policies under Medicaid and implement a program of preventive and primary care based on the Community Medical Group model
These recommendations and issues can now be supplemented by an even more comprehensive approach to community based alternatives based on new initiatives included in the Affordable Care Act in 2010. These include:
· The AFFORDABLE CARE ACT strengthened Section 1915 ( i ) to remove the requirement that individuals had to meet an institutional level of care in order to qualify for home and community-based services. Unlike eligibility for Medicaid Waivers which require a person meet an institutional level of care, the 2010 amendments permit a State to provide community-based services for people who are not otherwise eligible for institutional care.
· The Affordable Care Act also permits states to provide community-based services to persons with chronic mental illnesses and/or substance use disorders. Services for this population are defined extremely broadly.
· States now have the option to provide community-based services to persons whose incomes are 300% of the SSI income benefit.
· Benefits can be targeted to specific population groups without violating Medicaid's comparability requirements. Alternatively, States can target by functional needs. This permits States to have multiple programs, each targeted at specific populations, e.g., one for persons with physical needs and another benefit package targeted at persons with chronic mental illnesses. It permits a State to define populations' needs with great precision and specifics.
· Services can be narrowly defined, e.g., personal care or home health aide, instead of the Waiver package of services, thereby obviating the requirement that States provide a broad range of services to everyone on the Waiver.
· States have the option to offer consumers "self-direction."
All of the above new options were outlined in an August 6, 2010 Dear Medicaid Director from CMS which encouraged States to be more aggressive in moving towards community based options. The letter also states that "CMS urges all States to afford participants the opportunity to direct some or all of their HCBS. Self-direction permits participants to plan and purchase their HCBS under their direction and control or through an authorized representative”.
Massachusetts still spends nearly 70% of its Medicaid resources on institutionally based care. The Commonwealth must rebalance this ratio so that the first option for individuals is community based services and not institutional care. The DPC therefore proposes that the Commonwealth through your office begin immediately to address the significant imbalance in such services by pursuing the options described in CMS’s August 6, 2010 letter Dear Medicaid Director and/or any other methods described in the “Olmstead Initiatives “recommendations from the DPC.
We stand ready to meet with you and any members of your cabinet you deem necessary to begin to address what we see as a significant failure of Massachusetts to create real community based options for all of its citizens with disabilities. We can no longer wait for conversations to turn into action. The Commonwealth must take action now to move towards real implementation of the Olmstead Decision.
Sincerely,
John Pirone William Allan
President Executive Director
DPC Board Members (affiliation listed for identification only)
Joe Bellil John Winske
Treasurer Legal Committee Chair
(Easter Seals) (DRS Consulting)
John Chappell Eileen Feldman
Communications& Technology Chair Program Committee Chair
(Community Access)
Martina Carroll Mary Lou Maloney
(Stavros) Emeritus Member
Robert Snerison Matthew Miller