DRCNH Home > News > 10-28-2005

Disabled suing for home-based care

Nashua Telegraph
By KEVIN LANDRIGAN, Telegraph Staff
landrigank@telegraph-nh.com

Published: Friday, Oct. 28, 2005

CONCORD – Bonnie Bryson did not live long enough to see it but disability advocates are hoping the six-year campaign she started will deliver court-ordered services to brain-injured citizens who have languished for years on a waiting list.

Bryson remains, in memoriam, the lead party suing the Department of Health and Human Services on behalf of 24 people asking for more local care under the acquired brain disorder program.

These citizens want services at home, in their own communities, rather than in a controlled setting such as the Crotched Mountain Rehabilitation Center in Greenfield.

Bryson died in April of complications from multiple sclerosis. She filed the suit while waiting three years in a nursing home bed for community services.

Two years ago, the state removed her from the waiting list and supported moving Bryson in with her sister in Merrimack County.

“Those last few years were so enjoyable for her. They could go out; she could feel not like a prisoner but someone more in control of her life,’’ said Amy Messer, a lawyer for the Disabilities Rights Center that brought the lawsuit.

The Legislature decides if budget shortfalls add to this waiting list. Providing services to all the patients on the list could rob a half-dozen different programs serving the elderly, the disabled or the poor, said Health and Human Services Commissioner John Stephen who testified Thursday in the U.S. District Court trial.

“There is a very strong attitude in the Legislature not to make community-based care an entitlement,’’ Stephen said.

Last spring, Stephen said he asked for a $2 million increase in this budget to virtually eliminate the line of those waiting for services but it did not survive in the final, two-year state budget.

All those on the waiting list have a brain injury not occurring at birth. Injuries range from a motorcycle accident or stroke, to adult-onset MS such as what Bryce had.

The lawsuit contends these residents are entitled under the Americans for Disabilities Act to receive any “reasonable accommodation’’ to sustain their quality of life.

Stephen noted some on the list get some care, such as family support, but not all the local services they desire.

Ironically, community care is much cheaper for taxpayers than the cost to place the brain-injured person in a nursing home.

Messer said the wait list also creates a “bottleneck’’ of residents ready for a skilled nursing home bed that can’t get one and temporarily live in a hospital, the most expensive care option.

The federal government, through the Medicaid program, requires the state to spend whatever money it takes to serve the disabled needing a nursing home or hospital bed.

To offer community services, states need the permission of the federal government and they aren’t under obligation to serve all those who want that care.

The current wait for these services runs as long as 1,039 days and averages more than 500 days, according to documents both sides offered as undisputed facts in the case.

U.S. District Court Judge Steve McAuliffe repeatedly asked Stephen and other state officials why they couldn’t transfer money in the nursing home account for these citizens to the budget for community services.

“There is some, ill-defined, adverse effect for the state to doing this but I’m not sure what it is,’’ McAuliffe said.

Stephen explained that every time a brain-injured person leaves a nursing home bed, he or she is replaced so that higher cost does not go away.

“New Hampshire has done a great job of moving towards making community-based care a priority over the last 20 years,’’ Stephen said.

Last year, the state and federal cost for the 133 people diagnosed as brain injured was $11 million, but only 5 percent of that total – roughly $600,000 – was spent to reduce the size of the waiting list.

Every year, about three people go off the list by turning age 65 or dying. In the same time span, 18 people become eligible and are added to the list.

“There is no definite guarantee that I can give to these individuals or their families that they will get served,’’ said Matthew Ertas, bureau chief for Stephen’s community care-based division.

Over the next two months, Stephen said he’ll offer a plan to cap at 100 days the maximum amount that someone would remain on this program waiting list.

“Let’s go there today. Why are we arguing this case?’’ Stephen asked rhetorically.

There have been no recent settlement talks. The three-day trial ended with both sides awaiting McAuliffe’s decision.

Kevin Landrigan can be reached at 224-8804 or landrigank@telegraph-nh.com.