Court gives states some flexibility in expanding health services for disabled
High court gives states some flexibility in expanding health services for disabled
The landmark U.S. Supreme Court disability decision in June appears to give something both to advocates for the disabled who demand increased availability of community-based services and state Medicaid programs that must pay for institution- and community-based care.
The question being posed now by advocates for the disabled, state budget officials, and think tanks is just how it will all play out. The main point of agreement is that it will take some time to see what happens—and the possibility of additional litigation certainly exists.
The high court ruled in the case of L.C. v. Olmstead, brought under the Americans with Disabilities Act (ADA) by two Georgia women with mental retardation as well as psychiatric conditions who were patients in a state psychiatric hospital. Doctors at the hospital agreed they were appropriate for discharge into community programs, but no slots were available. The patients won their case in the U.S. District Court and again in the 11th Circuit Court of Appeals, to which the State of Georgia appealed the District Court decision.
Georgia then asked the Supreme Court to decide whether the public services portion of the ADA "compels the state to provide treatment and habilitation for mentally disabled persons in a community placement, when appropriate treatment and habilitation can also be provided to them in a State mental institution." At one point, 30 states had filed "friend of the court" briefs supporting Georgia’s position, but advocates for the disabled persuaded 19 of them to withdraw their petitions, raising hopes that many states may be willing to look for ways to implement the decision rather than continue the fight.
Writing for a 6-3 majority, Justice Ruth Bader Ginsburg said that under Title II of the ADA, states are not required to fundamentally alter their programs, but must make "reasonable modifications" to them to place persons with mental disabilities in community settings rather than in institutions. The requirement applies when the state’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources of the state and the needs of others with mental disabilities.
"This is a landmark decision," says Curt Decker, executive director of the National Association of Protection and Advocacy Systems. Mr. Decker notes that while the Olmstead case involved individuals with mental health problems, it has much broader applicability to those with physical and other disabilities. At least 15 cases waiting for guidance from the Supreme Court in federal and state courts now will move forward, he says. "There should be a flurry of court decisions in the next few months on a variety of populations. We expect those cases will be decided consistent with the Olmstead ruling, but we also expect there will be more litigation coming."
Even as Mr. Decker and other advocates were issuing statements claiming victory in the court’s ruling, those responsible for state budgets were sounding a cautionary note and asking for patience.
"State budget processes require time," says Gloria Taylor, executive director of the National Association of State Budget Officers, "and many legislatures have already approved their FY 2000 budgets and aren’t even in session now. This decision can’t be fully implemented right away. Some states will be better able to handle it than others. It will depend on each state and the kinds of policies they have implemented over the last decade."
In the past 10 years, some states have started moving people from institutions to community-based programs, although advocates often have complained that the pace has been too slow and long waiting lists have developed without any relief in sight for their clients.
While the Supreme Court’s majority opinion is clear that undue institutionalization is discrimination, it also appeared to recognize the difficulties states may face in balancing needs and resources and their need for some leeway in making reasonable modifications to their programs.
"This ruling has something in it that is encouraging to both sides," says Thurbert Baker, attorney general for Georgia, the state on the losing side of the decision. "It will allow states around the country a way to address this in a more even-handed approach."
If a state could demonstrate that it had a comprehensive, effectively working plan for placing qualified people with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the state’s endeavors to keep its institutions fully populated, it would meet the requirements of the ADA, according to the court’s majority opinion. In such an instance, courts could not order those who had brought suit to be moved to the top of the waiting list.
Ms. Taylor hopes those who have been advocating change will be willing to give the states three to five years to carry out a transition so the costs are not prohibitive. While many people say community-based programs cost less than institutional care, Ms. Taylor says that’s not necessarily so.
"The potential for additional costs is there. Unless you close institutions, the cost per client goes up a lot. And if you do close an institution, you need to have a place where people can be treated. I generally don’t believe the costs will be less unless you are running a full hospital with very few clients."
In addition, she says, community-based group homes may have to be built in some communities, and that takes time, planning, and resources.
Some observers hope the decision will provide a needed impetus for states to look at new and more effective ways to deal with the disabled and their needs.
Denver-based ADAPT, one of the most visible and vocal advocacy groups, is looking for members of Congress to sponsor its Medicaid Community Attendant Services and Supports Act. The bill would require coverage of community attendant services under Medicaid and also would provide for grants to develop and establish what its advocacy materials call "real choice" systems and initiatives for change.
States that have been working to move people to community-based programs have had to obtain approval from the Health Care Financing Administration through a waiver to spend Medicaid funds on such efforts. ADAPT’s bill would eliminate the waiver process and authorize spending directly on community-based attendant and support services.
ADAPT says it is necessary to change the long-term care service system in recognition of the fact that Medicaid and Medicare are based on medical models that no longer apply to all individuals. It recommends, as does Ms. Taylor, that money follow an individual and not be directed to any facility or provider. ADAPT also wants national policy not to favor one setting over another, instead letting users choose where to receive their services.
States will be looking for a means to control costs as they implement the transition to more community-based programs, says Stephen A. Somers, president of the Center for Health Care Strategies in Princeton, NJ.
Waivers can be one means of control, he says, but there also may be opportunities for creative use of mandatory Medicaid managed care to develop "a new entity that could apply the technology of managed care to community-based services, including health care, social services, and maybe even room and board." Institutions have managed all the needs of people with severe disabilities, Mr. Somers says, and now states should want to find a way to replace that management and coordination as they move people out of institutions.
He notes that in the movement of individuals out of mental hospitals into community settings in years past, needed services did not develop as much as many people would have wanted or thought necessary. The perception is that a lack of services has forced many of the mentally ill into poor care or homelessness, a situation that states and advocates are on guard against in the wake of the Olmstead decision, he says.
Among other concerns Mr. Somers sees are issues around devolution of programs from the federal government to the states. "If there are to be significant new expenditures, who is going to be responsible for them? We may see states negotiating with the federal government and making trade-offs on expenditures."
For advocate Curt Decker, whose National Association of Protection and Advocacy Systems was holding its annual meeting when the opinion was handed down, the decision was at the center of every conversation the delegates held. He voiced cautious optimism.
"The court said it was concerned about patient dumping, and so are we. We want to see community systems that are good quality. We know there will be negotiations over transition time and a reasonable approach. If a state has a plan and good-faith checkpoints along the way and lives up to those checkpoints, NAPAS would be willing to accept it. I’m hoping we’ll see a resolution of the pending cases consistent with Olmstead and can then go to states and say, Olmstead reaffirms the right of the disabled to have community-based treatment. Let’s negotiate how to do that.’"
Contact Mr. Decker at (202) 408-9514, Ms. Taylor at (202) 624-8804, Mr. Somers at (609) 279-0700, and ADAPT at (303) 333-6698.
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