California advocates say Gov. Brown's budget cuts may run afoul of Olmstead decision

From California Heathline:

Two goals of Gov. Jerry Brown's (D) proposed budget are to spread the pain evenly and steer the state to a brighter financial future. Advocates for California's needy seniors say it fails in both respects.

Elderly, low-income Californians who are dependent on state resources get more than their fair share of pain from this budget plan, advocates for seniors say. They predict that senior program cutbacks in the governor's plan would cost the state more money than they save in the not-so-long run.

"The current proposal seeks to reduce or eliminate longstanding programs that provide vulnerable older Californians with services critical to remaining independent in the community," said Bruce Chernof, president and CEO of the SCAN Foundation, a charitable advocate for senior health care.

"Proposed cuts of this magnitude have the potential to lead to greater use of institutional services over the long haul, such as nursing homes, hospitals and emergency rooms in order to get needed care. These services are often much more costly than the home- and community-based care options slated for reductions and elimination," Chernof said.

Brown proposes to reduce spending to deal with roughly half of the state's estimated shortage of $25.4 billion over the next 18 months. Brown hopes the other half will come from revenue generated when voters approve extending tax rates due to expire this year. Although his proposed reductions would affect a wide range of areas, Brown admits cuts in health and human services are particularly painful.

In addition to reductions in Medi-Cal, Healthy Families and mental health programs, Brown proposes:

■Cutbacks totaling $486 million for the In-Home Supportive Services program;
■Eliminating the state's adult day health care program for a savings of $193 million; and
■Reducing grants to the federal minimum for low-income elderly, disabled and blind residents for a savings of $192 million

"They talk about pain being shared across all segments, but it appears to me that the poorest Californians are being hit multiple times and they have fewer resources to deal with cutbacks," said Deborah Doctor, legislative advocate for Disability Rights California.

Advocates for seniors suggest the state could save money by streamlining and refining the way it deals with vulnerable populations and long term-care.

"We think one of the most obvious low-hanging fruits for saving money in the budget is to look at all these long-term care services together -- the adult day care services centers, the in-home services programs, as well as nursing homes and other institutions," Doctor said. "We're still spending lots of money unnecessarily on institutionalized care in places like nursing homes on people who would rather be at home."

"This is not rocket science," Doctor said. "Their care would be cheaper and better at home. We just have to look at it in the big picture and figure out how to get them home," Doctor said.

Senior advocates say Brown's proposed cuts may run afoul of at least the spirit of a couple laws, if not the letter.

Some advocates say cuts to California's In-Home Supportive Services and Adult Day Care Centers do not square with the U.S. Supreme Court's 1999 Olmstead v. L.C. and E.W. decision, in which the court ruled that states may be violating the Americans With Disabilities Act of 1990 if they provide care to people with disabilities in institutional settings when such people could be appropriately served in a home or community-based setting.

Chernof from the SCAN Foundation said Brown's cuts "contrast with the spirit of Olmstead."

"The 1999 Olmstead decision rendered a vision toward a more person-centered, community-based approach to care for individuals with disabilities, leading to states receiving guidance on ways to achieve this vision," Chernof said. "California has taken strides toward the Olmstead vision, yet the proposed cuts to home- and community-based services that support older and disabled adults contrast with the spirit of Olmstead. The proposed cuts also challenge what most California voters indicate that they want for themselves -- namely to have affordable care options in the community in order to avoid going to a nursing home," Chernof added.

Disability Rights California officials contend that California's Adult Day Health Centers are a Medi-Cal benefit that serves to avoid or delay institutionalization for seniors and people with disabilities.

"While the State may legally eliminate 'optional" Medi-Cal services, it may not run afoul of the Americans with Disabilities Act in doing so," Disability Rights California says in a prepared statement. "Elimination of ADHC, without ensuring that the 37,000 people affected have uninterrupted access to alternative Medi-Cal services to prevent unnecessary institutionalization violates the ADA," the statement continues.

Among the programs on the budget chopping block is the Multipurpose Senior Services Program (MSSP), which through some 40 sites works to keep seniors at home and out of institutions.

Janet Heath, past president of the MSSP Association and current director of Care Management Services for the UC-Davis Health System, estimates the state would quickly lose any savings by eliminating MSSP.

"MSSP was always seen as a program that saves the state money, so cutting it makes no sense to me," Heath said. She said her organization predicts that about one-third of its 12,000 clients statewide would "almost immediately" need to go into nursing homes if the state follows through on its cuts to day centers and MSSP programs.

"And the state will still need to pay for that care, which will be more expensive in institutions than it is at home," Heath said.

"It's not like this community of needy seniors hasn't already taken its lumps in the last three rounds of cutbacks," said Lydia Missaelides, executive director of the California Association for Adult Day Services.

"We have to find ways to keep this population from suffering more. And there are ways to do that. We're budget dust compared to some of the big-ticket programs in this state. We have to find ways to streamline and save money internally. If we look at this as an opportunity to reorganize, we can find ways to save money. There are five agencies that provide oversight for this program ... our regulations still talk about sending a telegram to communicate."

"We need to update and streamline, but we don't need to completely get rid of these programs," Missaelides said.