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Kim Swain or Elissa Gershon, PAI: (510) 430-8033
Arlene Mayerson, DREDF: (510) 644-2555
Herb Levine, ILRCSF: (415) 543-6222



Advocates Cheer Progress Toward Community Services for San Franciscans with Disabilities

Judge Saundra B. Armstrong of the U.S. District Court, Northern District of California, today preliminarily approved settlement of a class action lawsuit against San Francisco and several State agencies brought on behalf of present and potential residents of Laguna Honda Hospital (LHH) and the Independent Living Resource Center of San Francisco (ILRCSF). "This settlement represents a positive first step in establishing the rights of people with disabilities, including seniors, to receive services in their homes and communities rather than in institutions," says Kim Swain, lead counsel in the case from the Oakland office of Protection & Advocacy, Inc. (PAI), a non-profit agency that works to advance the rights of people with disabilities.

The lawsuit, Davis et al. v. California Health and Human Services Agency et al. was originally filed in July 2000 and is widely considered one of the most important cases seeking community integration of people with disabilities in the country. A hearing for final approval is set for July 13, 2004.

In 1999, the U.S. Supreme Court ruled in Olmstead v. L.C. that the unnecessary institutionalization of individuals with disabilities when home and community-based care would meet their needs violates the Americans with Disabilities Act (ADA) and constitutes discrimination based on disability (527 U.S. 581 (1999)).

In the Davis lawsuit, LHH residents and the ILRCSF challenged policies and practices that discharge patients from San Francisco General Hospital (SFGH) to LHH without considering non-institutional, community-based alternatives as required by the ADA and other federal and state laws. Plaintiff Jesse Fitchett spent more than six years at LHH but now lives in an apartment with part-time attendant care and other supports. "I was so happy to get out and have my freedom back and get better care," Mr. Fitchett said, explaining that he was happy about the settlement because "I want to see other people get out and be able to live independently like I do."

The settlement requires that San Francisco develop for the first time a system of assessment and discharge planning that allows people with disabilities and seniors the option of receiving supports and services in the community. By March 29, 2004, San Francisco will start a state-of-the-art Targeted Case Management (TCM) Program to screen, assess, and develop individual service and discharge plans for class members, and provide ongoing case management. Staff of the TCM Program will receive training on community living alternatives. In addition, San Francisco will conduct trainings for LHH residents on community living options, start a Community Advisory Committee with ILRCSF participation, and open a Community Resource Center at LHH.

"We're pleased to see that the city is being responsive to its citizens," commented Herb Levine, Executive Director of the ILRCSF. "Polls show that people would never go into nursing homes if they had the services necessary to help them stay in their community. For the first time, San Francisco will gather the information to determine what people need to successfully live in the community."

The Davis case also settles longstanding deficiencies in the State Department of Mental Health's Pre-Admission Screening and Resident Review (PASRR) program for individuals with psychiatric disabilities. The revised State assessment process will identify personal goals for housing, work, relationships, and health. State evaluators will consider whether the person's goals and needs can be met with the full range of community-based alternatives to nursing home care. According to attorney Michael Stortz of PAI, "The settlement helps put an end to an evaluation process that steers too many people into nursing homes."

In April 2003, the US Department of Justice (DOJ) sent a letter to San Francisco concluding its five-year investigation of LHH for practices that discriminate on the basis of disability. "The city continues to be in violation of the ADA and continues to fail to ensure that LHH residents are being served in the most integrated setting appropriate to their needs," wrote Assistant Attorney General Ralph Boyd, Jr. to City Attorney Dennis Herrera. The DOJ letter concluded that LHH residents are not adequately assessed for community-based services either on admission or at discharge. DOJ questioned the cost-effectiveness of San Francisco's plan to spend $401 million for a 1,200-bed replacement facility, which will cost $127,000 per bed each year to operate, noting that "community integrated options could be provided at a fraction of the cost of staying in LHH." Previously, the DOJ filed a friend of the court brief in support of the plaintiffs.

"People with disabilities should be given a choice about living options and community supports and not be forced to live in institutions," said Arlene B. Mayerson, Directing Attorney of the Disability Rights Education and Defense Fund (DREDF), a non-profit law and policy center for disability civil rights in Berkeley that has co-counseled in the case. "By informing class members about community options and reassessing all LHH residents, San Francisco is taking a first step in recognizing the right to live free of institutionalization."

The plaintiffs have the option to refile the portion of the case that seeks the actual provision of community services to people at SFGH and LHH after the new community-based assessment program is established and has been operating for six months. The need for community-based services and the capacity of San Francisco to provide such services will be determined based on the new assessment process.

"The settlement is a key step in helping guarantee the rights of people at these facilities, but it's not the last," said Ira Burnim, legal director of the Bazelon Center, a national legal advocacy group for people with mental disabilities. "We're committed to seeing the city put in place viable alternatives to institutional settings."

Plaintiffs are represented by a coalition: Protection & Advocacy, Inc. in Oakland, California; Disability Rights Education and Defense Fund, Inc. in Berkeley, California; the National Senior Citizens Law Center in Los Angeles, California; the Bazelon Center for Mental Health Law in Washington, D.C.; the Law Offices of Andrew Thomas Sinclair in Oakland, California; Howrey Simon Arnold & White, LLP, in Menlo Park, California; and the AARP Foundation Litigation, in Washington, DC.

Getting People with Disabilities and Older Americans Out of Nursing Homes


The Development of a System

Since the Supreme Court made its Olmstead decision four years ago there have been some policy changes at the federal and state levels that have enhanced our ability to get people out of nursing homes. These policy changes however do not make up an easy coordinated system and the pieces must be pulled together by advocates at the state level.

Though somewhat complicated it does give advocacy organizations including the federally authorized Independent Living Centers and Area Agencies on Aging working with the Protection and Advocacy Systems in the state an opportunity to pull the pieces together and get folks out of nursing homes.

The Pieces of the System

1. CMS publishes on a quarterly basis (9/30/03 will be the next published data) the number of people in nursing homes by state who have expressed an interest/preference to live in the community.

(Minimum Data Set, MDS Section Q1a)

  1. Check out the MDS numbers in your state;
  2. Ask your state for the names and what nursing homes these people reside in;
  3. These folks should be made part of the priority population in your Olmstead Comprehensive Effectively Working Plan.

2. Targeted Case Management is a Medicaid service that can be used to pay for identifying the specific people in nursing homes who want out and the service coordination to get them out.

  1. Targeted Case Management is very flexible. The State can design the population to be those in nursing homes who want out.
  2. Targeted Case Management can be used for up to180 days to assist a person to get out of a nursing home.
  3. Organizations will be reimbursed for the time spent working with the person in the nursing home to get out even if the person doesn’t eventually doesn’t get out. The key is to show that a good faith effort is made to get the person out.
  4. Targeted Case Management can be reimbursed either on an hourly basis or by contract. The State is allowed to make that decision. For example a State could give an IL or AAA a contract to identify and get folks out of nursing homes and get Medicaid reimbursement through Targeted Case Management.

3. Money Follows the Person

(The concept not the Bush Administration’s proposal)

  1. Once a person is identified in the nursing home as wanting out the funding for community services must be found;
  2. The State is already paying for that individual in the nursing home;
  3. The State can transfer the money it will require to pay for community services from the money it is ALREADY SPENDING on the person in the nursing home; This is being done in Texas today; It can be used for waiver services, Personal Care Option services and/or Home Health services.
  4. Since there are no waiting lists for nursing home services, the fact that a person chooses to leave the nursing home does not cause an opening for someone to move in. This “backfill” argument is just not true! It is an accounting transfer of money from the institution to the community.

The State actually saves money because overall it is cheaper in the community than it is to pay for nursing home services.

4. Protection and Advocacy Systems (P&A)

a. There are many funding sources that P&A’s can use to assist getting folks out of nursing homes -

  • P&A for Developmental Disabilities (PADD)
  • P&A for Mental Illness (PAMI)
  • P&A for Individual Rights (PAIR)
  • (PAIR covers individuals not covered by the above programs and the new Brain Injury P&A – [mostly physical disabilities]

b. P&A’s have a legal right to go into nursing homes even if they are not invited by an individual. This is a federal regulation.

c. P&A’s have a priority setting process and getting people out of nursing home could be a priority if advocates make it a priority. The PAIR funding could be used for this purpose as well as other funding sources.

The above 4 pieces can be brought together to get folks out of nursing homes.

The steps are:

  1. Get the latest CMS MDS numbers. (check CMS website)
  2. Ask your state for the names and location of the people who have expressed an interest/preference for community services.
  3. Makes these individuals a priority population in your Olmstead “Plan”.
  4. Advocate for your state to apply for Targeted Case Management making people in nursing who want out the targeted group for case management.
  5. Work with the IL’s and AAA’s in your state to contract with the state to use the Targeted Case Management funds to identify and get folks out of nursing homes.
  6. Advocate for your state to institute a Money Follow the Person concept either through legislation or administratively. This can pay for the community services when people relocate from the nursing home.
  7. Work with the P& A in your state to make getting folks out a priority for PAIR and other P&A funding.

Getting and keeping people out of nursing homes is tough work. The organizing to pull all the pieces must come from community advocacy organizations such as ILC’s and AAA’s. The political environment is very conservative but we must take advantage of every opportunity to use the tools we have to get and keep folks out of nursing homes. Together we can FREE OUR PEOPLE!

The ADAPT Community

Funding ideas for Identification/Service Coordination

1. Grant funds

  1. CMS - Nursing Home Transition
  2. DD Councils
  3. SILC's
  4. Foundations/Corporations
  5. Other Federal/State Agencies

2. Targeted Case Management - Medicaid Service

  1. Can be used up to 180 days
  2. Can be administered by contract or billed hourly - State decision

3. Vocational Rehabilitation/Independent Living Services

  1. VR Agency can create a reimbursable service called "Relocation Services" that can be used by non-profit agencies (like ILC's) to identify and service coordinate folks in nursing homes who want out.


Relocation Services - an array of services, the outcome is the development of services and supports that result in relocation of a VR or ILS client from an institutional setting such as a nursing home, ICF-MR facility to a community residence. DoE/RSA has done almost nothing on Olmstead implementation. This would be another potential funding source at the state level. Maybe RSA can make some incentive to make this happen nationally? The key is to get the IL world to pursue VR funds ALONG with Targeted Case Management to fund identification/service coordination services. Medicaid funding source should be pursued first because of "deep pockets".