But let's get back to the overall skimpiness of the plan. It has broad goals, but in key respects, it doesn't say how those goals will be achieved. It's first two goals, for instance, are 1) Help individuals transition from institutional care; and 2) Expand access to community-based long-term supports. Another goal (#4) is to “expand access to affordable and accessible housing and supports.”
One has to wonder how the administration can propose expanded access to community supports as it continues to cut the DMR budget.
There are currently thousands of people with mental retardation in Masschusetts on a waiting list for long-term care in the DMR system. The administration's plan talks about expanding access to affordable housing; but how much housing will have to be built, where will it be built, and what will it cost? There is no discussion of that.
The plan is particularly vague when it comes to the state facilities for people with mental retardation. Neither the Fernald Developmental Center, which the administration is trying to close, nor any of the other five facilities is mentioned. The closest the plan comes to saying anything about them is the statement that:
…the Plan supports the administration's commitment to shifting the focus of long-term care financing from institutions to the community.
We can only surmise that “shifting the focus” means shutting all the state facilities. But if that happens, won't the facility residents be competing with the thousands already waiting for community care? The plan doesn't get into this issue. Where are these hundreds of facility residents ulimately going to be “transitioned” to? The plan doesn't say.
The plan doesn't address these questions, and the reason is not surprising. If you shut down facilities, you worsen the overall housing problem. For some period of time, there will be less access to housing and less access to community supports for everyone. How will those problems be overcome?
The plan also states that this commitment to shift this focus from institutions is based on the 1999 Supreme Court decision, Olmstead v. L.C., in which a plaintiff sought a transfer from a state institution to a community setting. We would argue that the administration is misreading Olmstead.
As the Massachusetts Coalition of Families and Advocates for the Retarded, Inc. (COFAR) pointed out in an amicus brief in the ongoing appeals court case over Fernald, the core holding of Olmstead is that insitutional care is appropriate for people with severe disiabilities who cannot be accomodated in community settings. The Court found that three factors must be in place before institutional care can be deemed to be unjustified and community care required: 1) the determination of treatment professionals, 2) the views of the individual, and 3) the resources of the state.
The High Court also specifically stated in the decision that:
We emphasize that nothing in the ADA (Americans with Disabilities Act) or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings. (527 U.S. at 601-602)
Not surprisingly, the community vendor-first advocates never note this clear distinction that the Supreme Court drew in Olmstead.
Finally, the plan notes the “broad array of internal and external stakeholders” that helped in its drafting. All of these stakeholders are either state agency officials or members of advocacy organizations opposing institutional care. No facility advocates were invited.
Ever since Deval Patrick was a candidate for governor, the Fernald League, COFAR and others have sought to meet with him and offered to become involved in his administration's planning for care for persons with disabilities. Needless to say, we have never been taken up on our offers.