Friday, January 28, 2011

In California, advocates say home health care cuts violate disability rights laws

From McClatchy Newspapers:

SACRAMENTO, Calif. - Many of them voted for Jerry Brown last year, but California disabled activists are willing to fight the new Democratic governor in court if some of his proposed budget cuts are enacted.

Activists sued former Republican Gov. Arnold Schwarzenegger, blocking hundreds of millions of dollars in cuts and permanent eligibility changes to programs for the disabled. Some suits are still pending in federal courts, and Brown hasn't dropped them.

Now, a fresh report by the nonpartisan Legislative Analyst's Office finds that some of Brown's key proposals to reduce In-Home Supportive Services for the disabled risk violating disability rights laws.

"Any time services are reduced or limited, we have to think about whether this puts recipients at risk of being institutionalized, and how we should avoid it," said Ginni Bella Navarre, a social services analyst for the LAO.

At a recent meeting, advocates for the disabled from across the state were shocked at the scope of Brown's proposals, said Marty Omoto, a disabled rights activist who monitors the Capitol.

He said some mistakenly thought that if Brown succeeds in getting a ballot measure to extend tax increases before voters in June and it passes the governor would withdraw cuts to disabled services.

When they realized that Brown wants a first round of cuts - followed by tax increases he says he needs to avoid more cuts - "the look on their faces showed they were stunned," Omoto said.

Some began asking about suing again if legislators, who are mostly Democrats, approve the reductions and Brown issues new program rules that could violate the federal Americans With Disabilities Act.

H.D. Palmer, a state Department of Finance spokesman, said experts in the administration have studied how to avoid being sued.

He added: "You can't build a budget on the assumption you will lose in court. State government would come to a screeching halt."

Over the past two years, federal judges have blocked more than $600 million in cuts that Schwarzenegger wanted for the In-Home Supportive Services Program for the disabled and low-income seniors.

Judges barred an attempt to use an index score measuring a person's abilities to drop thousands from the in-home care program, whose enrollment has grown 80 percent since 2000 to a monthly average of 456,000 people.

Nonpartisan analyses have proved repeatedly that in-home care is much cheaper than institutional care.

In-home care which is also subsidized with federal dollars also meets the spirit of a 1999 U.S. Supreme Court decision asserting disabled people's right to live in communities and not be forced into institutions.

But faced with a budget deficit of $25 billion, Brown wants to cut in-home care costs by 43 percent compared with last year's spending.

To do that, he proposes cutting by about 8 percent all hours of care for all patients and eliminating all "domestic service" hours cleaning, shopping for program recipients who live with another person. He would drop all recipients who do not get a physician's certification that without in-home services, they would be forced to enter an institution.

Many recipients already have a doctor's recommendation that they receive some care, which is ultimately authorized by county social workers.

But disabled advocates say it would be new territory for a doctor to have to declare that without in-home care, a patient would certainly have to be put in a nursing home.

The legislative analyst questioned the certification proposal, too. "What does it mean to need (in-home care) to avoid out-of-home care?" the report says.

If the proposal to cut hours is to survive a court challenge, the analyst's office also suggests that Brown and legislators include a solid process for allowing exceptions for "supplemental care" for especially vulnerable recipients.

Cutting all domestic services for recipients who live with another person, the analyst says, runs the same risk of a legal challenge that now has Washington state embroiled in court battles.

Some care recipients have roommates - not just family members - and could lose all domestic care hours in California under Brown's plan, the report said.

Brown has also proposed eliminating adult day health care services for 27,000 seniors with dementia and people with other ailments. He would transfer 1,477 of those affected to another program that would get $16 million.

Adult day care is an optional benefit not required by federal Medicaid rules, Palmer said.

When Schwarzenegger cut podiatry and other optional services from Medi-Cal care, the Gray Panthers senior group sued and "the state prevailed," Palmer said.

But Disability Rights California also sued. It obtained federal court preliminary injunctions blocking new eligibility requirements for adult day care, as well as a change from a five-day limit to a three-day limit on day care services.

Palmer said that since the state was prevented from making partial reductions to the adult day care program, it may have to rely on asserting a right to eliminate an optional benefit entirely in order to make cuts.

"That's the irony," he said.