Testimony to
The Commission on Affordable Housing and Health Facility
Needs for Seniors in the 21st Century
November 7, 2001
by
John Durso Esq.

I think it's cruel and unusual punishment to ask a lawyer to speak for five minutes on anything, but I'll give it my best shot.

I've been asked to address a couple of issues.

In particular, I want to start with the Olmstead decision.

Robyn had talked about some of the changes and demographic changes that are needed for home-and-community-based services. In 1999, the U.S. Supreme Court sort of progressed that challenge and said that, under the Americans with Disability Act, it violates the Americans with Disability Act not to provide to persons who are institutionalized a more appropriate setting of care.

In that case, two women in Georgia who were suffering from mental illness were in a psychiatric hospital. They sued the State of Georgia and said that their professional treatment -- the persons that were overseeing their professional treatment said that they would do better and that it was appropriate for them to be in a non-institutional setting and to be in a home-and-community-based services, and they sued for that. They agreed that that's where they would rather be.

The U.S. Supreme Court said that you cannot discriminate against persons with disability and that you have to find for them ?? those are in the public benefit -- you have to provide for them services that are in a program or activity in the most appropriate setting to meet their needs.

Now, because of this case -- and this case obviously also applies to the term of disabled under the Americans with Disability Acts -- includes any person who has a physical or mental impairment, limiting a major life activity -- walking, eating, seeing, speaking, caring for oneself. Sounds a lot like our ADLs -- our assistance in daily living concept.

So that obviously includes persons who are disabled because of their age.

So the Olmstead decision clearly applies to seniors who need care.

I want to make it clear, though, that in the case the court found that the treatment setting was appropriate -- a managed institution treatment setting was appropriate and that the patients wanted that noninstitutional treatment center -- treatment setting. It does not say that, if you're in an institutional setting, if that's appropriate, that you have to move out of the institutional setting.

So the Olmstead decision has forced government that provides public benefit, be it HUD, be it Medicaid, be it other state agencies ?? those providing services -- they must take into account and reasonably accommodate and make reasonable modifications under their public benefit programs to serve these disabled in the best setting possible so that the reform in a sense has been spurred by the United States Supreme Court decision.

I would ask that you focus on another area, and that is oftentimes people say, "Well, the lawyers say, "Let's have negotiated risk contracts." A negotiated risk contract is where the resident agrees to accept a certain setting and they assume the risk that that setting may or may not be appropriate for their care, but that they would rather be in an independent setting or in a noninstitutional setting.

In my view, the negotiated risk answer from a legal liability protection is not much of an answer. I believe that it's very difficult to say that, if something goes wrong, the provider isn't going to be responsible.

I've been representing providers for over 20 years, and I can tell you that it doesn't matter how well we draft the negotiated risk contract, there's going to be an argument that it wasn't understood what was going to happen or what was going to go wrong.

I urge you in your deliberations and in your recommendations to make sure that you take into account tort reform or liability issues for the seniors that you're going to modify the services. Don't build incentives into anything you recommend that would siphon off dollars because let's face it; there's not enough economic resources to meet the needs out there, but don't create incentives that siphon the dollars off to plaintiff's lawyers. Yes, victims should be compensated, but it shouldn't be borne primarily upon the backs of attorney's fees or where attorney's fees are the primary source of litigation as opposed to changing the needs of the individuals.

So please pay attention to tort reform.

The last point that I would like to make -- and I'm sort of in the in-between generation. I have elderly family members that we're caring for and children at home -- so the in between right now.

I urge you that there are -- it's really important what you're doing to focus on more efficient ways for government to have oversight and involvement. All the different agencies, I don't believe, are really well coordinated, and I think that takes away from their effectiveness and takes away resources as those who provide the care have to respond to conflicting regulations and uncoordinated regulations.

I think it's also important that whatever we recommend builds in incentives to capitalization.

We need capital -- not just from the public sector but from the private sector, and we should try to build in those incentives.

Finally, whatever you can do to increase the funding because there's just not enough dollars attributable to the needs of the seniors and the care.

You have a heavy burden. Your task is not easy. I would urge you to think outside of what's already in place, try to be creative and think outside the box. We have an opportunity with a relatively clean slate to look at things sort of anew, take that opportunity -- it's an important opportunity; it's a difficult challenge, and we urge you to really work hard 'cause the seniors out there really need your help.