COFAR blog

COFAR is urging state legislative leaders to correct language in state budget legislation that mistakenly implies that the U.S. Supreme Court ordered the closures of institutions for persons with developmental disabilities.

The language in a budget line item cites Olmstead v. L.C., the Supreme Court’s landmark 1999 decision, which considered a petition by two residents of an institution in Georgia to be moved to community-based care. The Olmstead decision has been frequently mischaracterized as requiring the closure of all remaining state-run congregate care facilities in the country.

According to this characterization, Olmstead further required that all residents of those facilities, which include Intermediate Care Facilities (ICFs), be transferred to community-based group homes.

In one of three instances in which COFAR is seeking changes or corrections, the Massachusetts budget line item language states that the Department of Developmental Services (DDS) must report as of December 15 to the House and Senate Ways and Means Committees on “all efforts to comply with …Olmstead…and… the steps taken to consolidate or close an ICF…” (my emphasis)

However, in letters sent last week to the chairs of the House and Senate Ways and Means Committtees, COFAR noted that closing institutions was not the intent of the Olmstead decision, which was written by the late Justice Ruth Bader Ginsburg.

As our national affiliate, the VOR, has pointed out, “the Court’s determination in Olmstead supports both the right to an inclusive environment and the right to institutional care, based on the need and desires of the individual.” (my emphasis)

We are concerned that the misstatements in the ICF line item in the state budget each year could allow the administration and Legislature to justify continuing to underfund the line item, and possibly to seek the eventual closures of all remaining ICFs in Massachusetts. Those ICFs consist of the Wrentham and Hogan Developmental Centers, and three state-run group homes on the campus of the former Templeton Developmental Center.

The problematic language in line item 5930-1000 is included in both the House and Senate Ways and Means Committee versions of the budget for Fiscal Year 2023, which begins on July 1.

Declining funding in line item tracks budget language history

COFAR first identified the budget line item language last year, and reported that the language appears to have been included in the line item in state budgets going back as far as Fiscal Year 2012.

It is perhaps not coincidental that since Fiscal Year 2012, four of six remaining developmental centers in the state have been closed. And when the Fiscal Year 2023 budget is adopted, the ICF line item will have been cut since Fiscal 2012 by $78.2 million, or 42%, when adjusted for inflation. (Those numbers are based on the Massachusetts Budget and Policy Center’s Budget Browser app.)

Three of the DDS reports required by the line item language — for calendar years 2018, 2019, and 2020 — discussed a steadily dropping population or census at the Wrentham and Hogan centers, and practically zero admissions to those facilities after 2019 as well.

We have noted that the lack of admissions to Wrentham and Hogan indicate that the administration is unlawfully failing to offer those settings as residential options to indivdiuals with developmental disabilities who are seeking residential placements in the state.

Three mistaken or misleading statements

There are what appear to be at least three mistaken or misleading statements in the language in line item 5930-1000: (The first item below is simply a case of wrong terminology.)

1. The budgetary line item language mistakenly identifies ICFs as “intermittent care facilities.”  The correct term is “intermediate care facilities.”

2. As noted, language in the line item mistakenly implies that the Olmstead decision was intended to close ICFs. In fact, Olmstead held 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. . . Nor is there any federal requirement that community-based treatment be imposed on patients who do not desire it. (my emphasis)

3. A statement in the line item, which lists three conditions for discharging clients from ICFs to the community, leaves out one of the key conditions in Olmstead, which is that the client or their guardian does not oppose the discharge.

The House and Senate line item language states that in order to comply with Olmstead, DDS:

…shall discharge clients residing in intermittent care facilities for individuals with intellectual disabilities…to residential services in the community if:

(i) the client is deemed clinically suited for a more integrated setting;

(ii) community residential service capacity and resources available are sufficient to provide each client with an equal or improved level of service; and

(iii) the cost to the commonwealth of serving the client in the community is less than or equal to the cost of serving the client in an ICF/IID…” (my emphasis)

The first two of those conditions in the line item language are contained in the Olmstead ruling. The third condition about cost being less in the community actually isn’t contained in Olmstead.

The third condition in Olmstead for discharging clients from ICFs is that such a discharge is “not opposed” by the client and/or their guardian. That condition is not included in the House or Senate budget line item.

Here is the actual language from the Olmstead decision:

…we conclude that, under Title II of the ADA, States are required to provide community-based treatment for persons with mental disabilities when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. (my emphasis)

We have asked Senator Michael Rodrigues and Representative Aaron Michlewitz, the chairs of the Senate and House Ways and Means Committees respectively, to consider redrafting this line item language to correct these mistakes.