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HOUSE OF REPRESENTATIVES             H.C.R. NO.            
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                                
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                     HOUSE CONCURRENT
                        RESOLUTION

REQUESTING THE GOVERNOR TO ESTABLISH A TASK FORCE TO DEVELOP AND
   IMPLEMENT A STATEWIDE, COMPREHENSIVE, AND EFFECTIVE WORKING
   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 women
 7   whose disabilities include mental retardation and mental
 8   illness.  At the time the suit was filed, both plaintiffs lived
 9   in state-run institutions, despite the fact that their
10   treatment professionals had determined that they could be
11   appropriately served in a community setting.  The plaintiffs
12   asserted that continued institutionalization was a violation of
13   their right under the Americans with Disabilities Act of 1990
14   (ADA); and
15   
16       WHEREAS, many people with physical and sensory disabilities
17   have historically been institutionalized by state agencies in
18   ways similar to the plaintiffs in the Olmstead case, and these
19   people are equally protected by the ADA and Olmstead; and
20   
21       WHEREAS, the Supreme Court recognized that unjustified
22   institutional isolation of persons with disabilities is a form
23   of discrimination.  First, institutional placement of persons
24   who can handle and benefit from community settings perpetuates
25   unwarranted assumptions that persons so isolated are incapable
26   or unworthy of participating in community life.  Second,
27   confinement in an institution severely diminish the everyday
28   life activities of individuals, including family relations,
29   social contacts, work options, economic independence,
30   educational advancement, and cultural enrichment; and 

 
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                                  H.C.R. NO.            
                                                        
                                                        

 
 1       WHEREAS, Olmstead challenges states to prevent and correct
 2   inappropriate institutionalization and to review the intake and
 3   admissions processes to assure that persons with disabilities
 4   are served in the most appropriate integrated setting; and
 5   
 6       WHEREAS, failure by the State to serve people with
 7   disabilities in the most integrated setting appropriate to
 8   their needs and in a timely manner may violate Title II of the
 9   ADA; and
10   
11       WHEREAS, the Supreme Court suggests that a state could
12   establish compliance with Title II of the ADA if it
13   demonstrates that it has "a comprehensive, effectively working
14   plan for placing qualified persons with disabilities in less
15   restrictive settings, and a waiting list that moves at a
16   reasonable pace not controlled by the State's endeavors to keep
17   its institutions fully populated"; and
18   
19       WHEREAS, in a letter addressed to all state Medicaid
20   Directors, the U.S. Department of Health & Human Services
21   suggests that Medicaid assist states in meeting these goals and
22   complying with the ADA; and
23   
24       WHEREAS, in Hawaii, people with disabilities are faced with
25   various waiting lists for services and supports necessary to
26   live in the community; and
27   
28       WHEREAS, the Home and Community-Based Services Waiver
29   Program for people with mental retardation and developmental
30   disabilities admits that there are over 850 people currently
31   wait-listed for waiver services; and
32   
33       WHEREAS, the Nursing Home Without Walls Medicaid Waiver
34   Program for people with personal care needs admits having
35   extended waiting periods ranging from a few months to over two
36   years at certain times; and
37   
38       WHEREAS, because of the lack of services and supports, many
39   people with disabilities are forced to choose between living
40   with their aged parents or with working families who are less
41   able to maintain their support, or living in isolation in
42   nursing facilities or other institutions; and 
43   
44       WHEREAS, Makin v. State, CV 98-00997 DAE (1998), is pending
45   in U.S. District Court, wherein the Hawaii Disability Rights
46   Center is suing the State Department of Health (DOH) and the
47   Department of Human Services (DHS) on behalf of a class of over
48   750 individuals with developmental disabilities for failure to
49   properly serve people with disabilities; and

 
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 1   
 2       WHEREAS, in Makin, U.S. District Court Judge David A. Ezra,
 3   held on November 26, 1999, that the integration mandate of
 4   Title II of the ADA applies to persons at risk of
 5   institutionalization and not only those already living in
 6   institutions and that the State must have a comprehensive plan
 7   in effect to move persons off the waiting list at a reasonable
 8   pace; now, therefore,
 9   
10       BE IT RESOLVED by the House of Representatives of the
11   Twentieth Legislature of the State of Hawaii, Regular Session
12   of 2000, the Senate concurring, that the Governor is requested
13   to form a task force to develop and implement a comprehensive
14   plan to address the needs of individuals with disabilities to
15   include placement into less restrictive settings and wait-lists
16   that move at a reasonable pace; and
17   
18       BE IT FURTHER RESOLVED that the Governor include the DOH,
19   the DHS, and the Housing and Community Development Corporation
20   in the composition of task force; and
21   
22       BE IT FURTHER RESOLVED that the Governor, in developing the
23   plan, solicit input from individuals with disabilities,
24   parents, family members or guardians of individuals with
25   disabilities, private and public agencies, Disability and
26   Communication Access Board, the State Planning Council on
27   Developmental Disabilities, other state departments as
28   appropriate, the University of Hawaii Center on Disability
29   Studies, the Hawaii Disability Rights Center, disability rights
30   advocates and service providers such as the Hawaii Centers for
31   Independent Living, the Statewide Independent Living Council,
32   The Arc in Hawaii, the Mental Health Association of Hawaii,
33   Disability Rights Hawaii, and Mental Help Hawaii; and
34   
35       BE IT FURTHER RESOLVED that certified copies of this
36   Concurrent Resolution be transmitted to the Governor, President
37   of the Senate, Speaker of the House, the Directors of Health,
38   Human Services, and Business, Economic Development, and
39   Tourism.
40 
41 
42 
43                         OFFERED BY:  ____________________________