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Proposed block grant could leave counties legally vulnerable

By   /   June 25, 2012  /   2 Comments

By Melissa Daniels | PA Independent

HARRISBURG — A divisive plan to change the way the Pennsylvania funds social welfare programs could be passed along with the budget this week, but some have questions about the legal burdens.

The Human Services Block Grant proposal consolidates seven streams  of categorized funding for public welfare programs — such as those assisting people who are homeless, addicted, or mentally disabled — into one line item of funding.

Counties would be able to allocate that money they way they see fit — and at least 27 county commissioners and officials from around the state say it will give them more flexibility.

But other officials, including major service providers, are against the block grant, saying it will lead to a decrease in services. The measure comes with a 10 percent cut to this year’s funding of $84 million, and opponents of the proposal say it would hurt the most vulnerable portions of the population.

Furthermore, it could open up counties to lawsuits, say at least three legal experts who’ve drafted papers on the proposal.

Allen Warshaw drafted a legal analysis memo on the proposal as outside counsel for trade association Pennsylvania Community Providers Association. He said the difference in which entity has the final say in allocating money could lead to legal liabilities.

“The counties are now on the firing line because they are now making decisions in a way they weren’t before,” said Warshaw, former chief counsel for the Department of Public Welfare.

Federal laws give safety to the state for any monetary damages, keeping them free from liability should a recipient of human service funding take civil action against the state.

But counties don’t have that same protection.

Still, leaders and members of the County Commissions Association of Pennsylvania, representing the top lawmakers from Pennsylvania’s counties, have lent their support to the proposal. But at least 17 county commissioners and council members urge money be restored the block grant, according to a proposal from human services funding advocacy group Campaign for What Works.

Asked about the potential for county liabilities under the Americans with Disabilities ActDPW Secretary Gary Alexander said it wasn’t an issue.

“We’ve had legal experts look at it in the department and we’ve found that’s not the case,” he said.

DPW spokeswoman Carey Miller said the block grant program requires counties to comply with federal requirements for funding, which would keep them from being sued if  funds are misallocated.

Additionally, DPW officials would sign off on all plans for Human Services Block Grant funding before implementation, according to the proposal.

“The department expects counties will continue to expend federal funds in compliance with federal requirements, and under the proposal, the department will have the ability to ensure that counties spend block grant funds to maintain compliance with federal requirements,” Miller said in an emailed statement.

But others see room for funding recipients to take action against government entities.

Ray Firth is the policy initiatives director for the Office of Child Development at University of Pittsburgh. He said counties could be particularly liable in cases of mentally disabled people housed in state hospitals, which will be somewhere between 1,000 and 1,750 residents as of this summer.

Firth cited a 1999 Supreme Court decision, Olmstead v. L.C., which granted people with disabilities the right to live in communities as opposed to state hospitals if treatment providers approve of the situation.  That decision, which was based on ACA standards, spurred states to reallocate state hospital funding to community-based programs.

But, Firth said, if that funding could be reallocated under the block grant, it could lead to longer stays in institutions. That could turn into civil rights lawsuits, he said, causing “unnecessary turmoil” for people with disabilities and their families.

“That just watered down any effort try to bring people out of state facilities who everybody agrees doesn’t need to be there, they get stalled and now their attorneys turn to the county and the county commissioner, who only has property taxes to go to,” Firth said.

Mark Murphy, executive director of advocacy group Disability Rights Network, said that the block grant setup could violate the ADA, since it allows funding used to support people with disabilities to be shifted elsewhere.

That will put people at risk of institutionalization, violating the act, Murphy said at a news conference Monday. If those people were to bring those cases to court, it could mean mounting legal bills for counties.

“It’ll make the counties the target of lawsuits, the target for monetary claims and damages, the target for attorney’s fees for people who successfully bring this,” Murphy said. “There’s no evidence yet that it could work as it’s intended to help, and it also leaves a legal liability to counties under nondiscrimination rights under federal law.”

Rep. Gene DiGirolamo, R-Bucks

The proposal has passed in the Senate, and could be voted in the House of Representatives sometime this week.


It’s unclear if there is enough support for the proposal even among the governor’s own party. Rep. Gene DiGirolamo, R-Bucks, has his own proposal for a pilot block grant program.

He called shifting to a block grant a “historic, monumental” change for human service funding, and said the administration is moving too quickly, adding that the providers or recipients of human services funding were not consulted during negotiations.

As chair of the House Human Services Committee, DiGirolamo only received the proposal last week, he said.

“If I were a county commissioner I would be asking my association, (or) the Department of Public Welfare, to give me something in writing from an attorney who has worked on this giving me their legal opinion,” he said. “I haven’t seen anything like that.”