Berkshire Senior Online

by Catherine R. May, Executive Director

An open letter to the Acting Governor and the Berkshire legislative delegation:

Dear Acting Governor Swift, Senator Nuciforo, and Representatives Bosley,

Hodgkins, Kelly, and Larkin:

As you know, the United States Supreme Court, in the 1999 Olmstead decision, found that, under certain circumstances, the Americans With Disabilities Act requires states to provide community based treatment for persons with disabilities. The court stated that "unjustified isolation", e.g., institutionalization, when a doctor deems community treatment equally beneficial, "is properly regarded as discrimination based on disability".

Based on Olmstead , as part of his New Freedom Initiative, President George W. Bush stated that "community based care is critically important to promoting maximum independence and to integrating individuals with disabilities into community life." The President has signed an Executive Order Supporting Swift Implementation of the Olmstead Decision, which directs the federal Department of Health and Human Services (HHS) to lead the federal government’s coordinated efforts to work with the states to fully implement the decision.

On June 19^th,, HHS Secretary Tommy Thompson said that his department is moving vigorously to improve access to community services for people with disabilities. To support this process, HHS will provide $70 million in "systems change" grants to help states improve their community based services; all states can apply.

HHS has developed a "primer"for states to explain, in plain language, existing long term care options in Medicaid, in order to help states offer more home and community based Medicaid funded long term care.

In Massachusetts, thousands of disabled elderly persons are being denied the rights Olmstead is to protect, as they are being denied an opportunity to live in the most integrated community setting. The disabled elderly do not have an equal choice between institutional and home based care, because the commonwealth does not provide adequate Medicaid funding for community based care. For example, in 1998, Massachusetts Medicaid spent 71% of its funds on nursing home care, leaving only 29% for care in community settings.

At present, the state legislature is working on an Equal Choice bill, a bill that seeks to support Olmstead by providing an equal choice between institutional and community care. The lack of Equal Choice in Massachusetts discriminates against the disabled, including the elderly disabled, and denies their civil right to avoid unnecessary institutionalization, in part because of the long term state bias in favor of institutional care.

The Equal Choice Bill says that if a disabled person is likely to require the level of care provided by Medicaid in a nursing home, they should be given an "equal choice" to receive the needed care in a setting that is non-institutional. The Equal Choice bill advocates that the funding for care follow the consumer, and that the worth of that care would be the same in either setting. The total cost spent on community care could not exceed the cost of care in a nursing home.

Currently , however, the amount agreed upon by Medicaid and the Executive Office of Elder Affairs available to serve that person in the community is $7.38 per day. This is hardly equal choice!

The House version of the Equal Choice bill is still only a study, advocates are working to get the Senate version, Senate 676 out of committee, so that the bill can begin to move.

On behalf of the disabled elderly, we ask Acting Governor Swift to support Equal Choice, just as she supported community care for Berkshire elders not too long ago as our state senator.

We ask the Berkshire legislative delegation to continue to work on ensuring this basic civil right by passing the Equal Choice legislation to insure Equal Choice for all disabled constituents.