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Equal Choice Law Three Year Later

By July 31, 2009No Comments

Advocates Say Elders Still Face “Unequal Choice”

SOUTHWEST BOSTON,MA(July 31, 2009) –Three years ago this Monday, August 3rd, elderly and disability rights advocates gathered at a State House ceremony as Governor Mitt Romney signed into law Chapter 211, the Equal Choice Law. Despite passage this law on August 3, 2006 the promise that elders and individuals with disabilities would be cared for in the least restrictive setting, still has not been fully achieved. The major provisions in the law have hardly advanced. Even though the Romney and Patrick Administrations have coined the term “community first” to describe long term care services, advocates charge that in many ways this is still an “institutions first” state. As examples:

  • The General Court this week adopted a FY 2010 supplemental budget that added $10 million for nursing home rates, but only $200,000 for care managers in the home care program. Institutions got 50 times the funding that community care received.
  •  A new report from the state’s Executive Office of Human Services indicates that MassHealth spending on long term care supports is still dominated by institutions. In FY 2008, a total of $2.88 billion was spent by MassHealth for long term care—of which 61% ($1.748 billion) went to institutions, and only 39% went to community programs ($1.131 billion). If the two sectors had been in a 50/50 balance, community based services would have received an additional $308.6 million that year.

Fiscal Year

Community Spending

Institutional Spending

Total Spending

% spent in community

% spent in nursing homes

FY 2008 $1,131.627,326 $1,748,839,747 $2,880,467,073 39.3% 60/71%

Source: Massachusetts State Profile Tool, July, 2009. EOHHS 

Three years after the Equal Choice Law was signed, here is a report on what has been implemented, and what has not: 

1. PRE-ADMISSION COUNSELING. Chapter 211 created a Pre-Admission Counseling service for long term care which includes an assessment of community based service options for people in hospitals who are heading towards nursing homes. The purpose of this counseling is to help divert people into the community, and save Medicaid the expense of nursing home days. These assessments are mandatory for people seeking MassHealth payment, and must be offered to private paying consumers. The state is required to report the number of diversions to the community generated by pre-screening.

STATUS: Only 3 regional areas have a preliminary program—and only in selected hospitals on the North Shore, Metrowest, and Merrimack Valley regions. Less than $500,000 was allocated in FY 2009 for this project. In FY 2010, the legislature funded $2.5 million for expansion of this program. As of the 3rd. anniversary of the Equal Choice law, none of the new funds have been allocated to the field. The state has indicated that the so-called “Long Term Care Options” program will be pushed out statewide this year, but no timetable or contracts have been awarded. Consumers should have been able to access this program three years ago, regardless of where they live in the state.

2. ADOPT MASSHEALTH REGULATIONS. Chapter 211 requires the Division of Medical Assistance to adopt regulations to implement the “least restrictive and most appropriate”setting language.

STATUS: No activity. No changes to the regulations for Medicaid have been made.

3.SUBMIT  AN 1115 WAIVER that establishes MassHealth eligibility at 300% of SSI and $10,000 asset level.

STATUS: This waiver was submitted to the federal Center of Medicare and Medicaid Services (CMS) in December, 2006. Two years and half years later, the 1115 waiver has been scrubbed for FY 2010, and there is no funding in the FY 2010 budget for this waiver.  House 1 proposed to start the waiver in July, 2009. At one point in the budget process, a total of $41 million was requested by Governor Patrick—of which $20 M was from federal stimulus funds. The Governor’s budget said this waiver would seek “to encourage flexible service options in the community for those who might otherwise need to seek services in a facility setting. The proposed strategies will enable some individuals to continue to live independently in community settings and support others in returning to community settings from institutions.” In June, 2009 the Governor pulled his budget request for the waiver, reduced the line item to $0, and the item was not funded by the General Court.

“The recession alone cannot be blamed for the lack of progress in this civil rights law,” said Ethos Executive Director Dale Mitchell, who helped write the law.  “Civil rights do not disappear in lean fiscal times. The fact is, keeping people at home is saving the state more than half a billion dollars annually in avoided nursing home costs. The Equal Choice law is part of the solution, not part of the problem.”

Mitchell said Ethos will continue to urge the Patrick Administration to shift funds into the community. Although nursing home patient days have fallen nearly 20% since the year 2000, Mitchell said the state still needs to shift funds for elders into community settings, much as the state has already done for other populations, like the developmentally disabled. Mitchell said that funds for the developmentally disabled are 85% spent in the community. “Advocates for the developmentally disabled have shown us the way this should be done,” Mitchell said. In FY 2008, the state spent a total of $1.18 billion on Developmental Services, of which 84.5% went to community care. “That’s where we need to get with elderly long term care,” Mitchell admitted. “If community long term care got 84.5% of the spending as developmental services did,” Mitchell said, “we would have received an additional $1.3 billion in FY 2008. That’s a huge imbalance.”

“We should be much further along the path of ‘rebalancing’ how our tax dollars are spent in the community,” Mitchell noted. “Twenty-seven other states have a greater percentage of their long term care clients living at home.” As of 2006, the percentage of MassHealth long term care expenditures going to community care services in Massachusetts was only 22%—which ranked the state 20th in the nation. The top five states for “rebalancing” their expenditures into the community are:


Percent of 2006 Medicaid LTC Expenditures going to community care services for adults with disabilities


Oregon 55% 1
New Mexico 54% 2
Washington 54% 3
Alaska 51% 4
California 47% 5
Massachusetts 22% 20


“Whether it takes three years or thirty years—we’re going to keep on pushing for all individuals with disabilities to have the right to live in the most integrated settings appropriate to their needs. That’s what the Equal Choice law is really all about.” Mitchell concluded. “We are still living in a state with an unequal choice of care, and are still discriminating against individuals with disabilities by spending more of our tax dollars on the most restrictive form of care, instead of the most integrated form of care.”