THE SENATE                           S.C.R. NO.            163
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
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                    SENATE  CONCURRENT
                        RESOLUTION

  REQUESTING THE GOVERNOR TO CONVENE A TASK FORCE TO DEVELOP AND
    IMPLEMENT A COMPREHENSIVE STATEWIDE PLAN FOR PLACING
    QUALIFIED PERSONS WITH DISABILITIES IN THE MOST INTEGRATED
    SETTING POSSIBLE AND TO KEEP WAITING LISTS THAT MOVE AT A
    REASONABLE PACE. 


 1        WHEREAS, a recent United States Supreme Court decision in
 2   Olmstead v. L.C., 119 S. Ct. 2176(1999), provides an important
 3   legal framework to enable individuals with disabilities to live
 4   in the most integrated setting appropriate to their needs; and
 5   
 6        WHEREAS, the Olmstead case was brought by two Georgia
 7   women whose disabilities include mental retardation and mental
 8   illness, and who lived in State-run institutions, despite the
 9   fact that their treatment professional had determined that they
10   could be appropriately served in a community setting; and
11   
12        WHEREAS, the plaintiffs asserted that their continued
13   institutionalization was a violation of their right under the
14   Americans with Disabilities Act of 1990 (ADA); and
15   
16        WHEREAS, many people with physical and sensory
17   disabilities have historically been institutionalized by state
18   agencies in ways similar to the plaintiffs in the Olmstead
19   case, and these people are equally protected by the ADA and by
20   the United States Supreme Court's findings; and
21   
22        WHEREAS, the United States Supreme Court recognized that
23   unjustified institutional isolation of persons with
24   disabilities is a form of discrimination that reflects two
25   evident judgments:
26   
27        (1)  Institutional placement of persons who can handle and
28             benefit from community settings perpetuates
29             unwarranted assumptions that persons isolated in
30             institutions are incapable or unworthy of
31             participating in community life; and
32   
33        (2)  Confinement in an institution severely diminishes the

 
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 1             everyday life activities of individuals, including
 2             family relations, social contacts, work options,
 3             economic independence, educational advancement, and
 4             cultural enrichment;
 5   
 6   and
 7   
 8        WHEREAS, Olmstead challenges states to prevent and correct
 9   inappropriate institutionalization and to review the intake and
10   admissions processes to assure that persons with disabilities
11   are served in the most appropriate integrated setting; and
12   
13        WHEREAS, failure by the State to serve people with
14   disabilities in the most integrated setting appropriate to
15   their needs and in a timely manner may violate Title II of the
16   ADA; and
17   
18        WHEREAS, the United States Supreme Court suggests that a
19   State could establish compliance with Title II of the ADA if it
20   demonstrates that it has a "comprehensive, effectively working
21   plan for placing qualified persons with disabilities in less
22   restrictive settings, and a waiting list that moves at a
23   reasonable pace not controlled by the State's endeavors to keep
24   its institutions fully populated"; and
25   
26        WHEREAS, in a letter addressed to all State Medicaid
27   Directors, the U.S. Department of Health and Human Services
28   suggests that Medicaid assist States in meeting these goals and
29   comply with the ADA; and
30   
31        WHEREAS, in Hawaii, people with disabilities are faced
32   with various waiting lists for services and supports necessary
33   to live in the community; and
34   
35        WHEREAS, the State's Home and Community Based Services
36   Waiver Program for people with Mental Retardation and
37   Developmental Disabilities indicates that there are over 850
38   people currently waitlisted for waiver services in Hawaii; and
39   
40        WHEREAS, the Nursing Home Without Walls Medicaid Waiver
41   Program for people with personal care needs has extended
42   waiting periods ranging from a few months to over two years at

 
 
 
 
 
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 1   certain times; and
 2   
 3        WHEREAS, because of the lack of services and supports,
 4   many people with disabilities are forced to choose between
 5   living with their aged parents or with working families who are
 6   less able to maintain their support, or living in isolation in
 7   nursing facilities or other institutions; and
 8   
 9        WHEREAS, a lawsuit, Makin, Mullen, et. al. v. Cayetano,
10   CV98 00997 DAE (1998), has been filed in the U.S. District
11   Court against the State of Hawaii, Department of Health, and
12   Department of Human Services by the Hawaii Disability Rights
13   Center on behalf of a class of over 750 individuals with
14   Developmental Disabilities, and is based on an allegation of a
15   failure to properly serve people with disabilities; and
16   
17        WHEREAS, in the Makin case, the Honorable David A. Ezra
18   U.S. District Judge, issued on November 26, 1999, a decision
19   holding that:
20   
21        (1)  The integration mandate of Title II of the ADA
22             applies to persons at risk of institutionalization
23             and not only to those already living in institutions;
24             and
25   
26        (2)  The State must have a comprehensive plan in effect to
27             move persons off the waiting list at a reasonable
28             pace;
29   
30    now, therefore,
31   
32        BE IT RESOLVED by the Senate of the Twentieth Legislature
33   of the State of Hawaii, Regular Session of 2000, the House of
34   Representatives concurring, that the Governor convene a task
35   force to develop and implement a comprehensive statewide plan
36   to address the issue of the State's compliance with the
37   integration mandate of Title II of the ADA, as interpreted in
38   the Makin case; and
39   
40        BE IT FURTHER RESOLVED that the task force include
41   representatives of the Department of Health, Department of
42   Human Services, and the Housing and Community Development

 
 
 
 
 
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 1   Corporation of Hawaii; and
 2   
 3        BE IT FURTHER RESOLVED that the task force, in developing
 4   the plan, solicit input from the Disability and Communication
 5   Access Board, State Planning Council on Developmental
 6   Disabilities, other State departments as appropriate,
 7   University of Hawaii Center on Disability Studies, Hawaii
 8   Disability Rights Center, disability rights advocates and
 9   service providers such as the Hawaii Centers for Independence
10   Living, the Statewide Independent Living Council, The Arc in
11   Hawaii, Mental Health Association of Hawaii, Disability Rights
12   Hawaii, Mental Help Hawaii, and individuals with disabilities,
13   parents, family members, or guardians of individuals with
14   disabilities, and other private and public agencies providing
15   services to persons with disabilities; and
16   
17        BE FURTHER RESOLVED that certified copies of this
18   Concurrent Resolution be transmitted to the Governor, Director
19   of Health, Director of Human Services, and Chairperson of the
20   Board of Directors of the Housing and Community Development
21   Corporation of Hawaii.
22 
23 
24 
25                         OFFERED BY:  ____________________________