Department of Justice Olmstead Enforcement ALFA Conference May 8, 2013
Olmstead is a top priority for DOJ’s Civil Rights Division • “Year of Community Living” – "The Olmstead ruling . . . ar9culat[ed] one of the most
fundamental rights of Americans with disabili9es: Having the choice to live independently. [T]his ini9a9ve reaffirms my Administra9on’s commitment to vigorous enforcement of civil rights for Americans with disabili9es and to ensuring the fullest inclusion of all people in the life of our na9on.” President Obama June 22, 2009
• DOJ Olmstead enforcement efforts – approx 40 maRers in more than 20 states over the past several years
DOJ’s Olmstead Enforcement Objec<ves • Help people with disabili9es live like people without disabili9es • Help people with disabili9es have true integra9on, independence, choice and self-‐ determina9on in all aspects of life – where people live, how they spend their days, and real community membership
Objec<ves (cont’d) • Ensure quality services that meet people’s needs and help them achieve their own goals – Accountability of services/quality management – Person-‐centered planning – Informed choice
Important Principles • Focus on crea9ng quality community alterna9ves for people in ins9tu9ons • Engagement of a range of stakeholders – consumers, families, advocates, providers – is essen9al
Important Principles (cont’d) • Access to quality community services and affordable, integrated housing cri9cal to success of Olmstead efforts – Cross-‐agency collabora9on with DOJ, HHS, and HUD
Range of DOJ “Tools” • Inves9ga9ons & Findings LeRers leading to SeRlement Agreements or Li9ga9on for system reform • Interven9on in private Olmstead li9ga9on • Statement of Interest prac9ce in private li9ga9on on many Olmstead issues • Olmstead Technical Assistance Guidance • Olmstead website (www.ada.gov/olmstead)
Legal Background
Title II of the ADA
• Prohibits discrimina9on by public en99es in services, programs and ac9vi9es • Integra9on regula9on requires administra9on of services, programs and ac9vi9es in the most integrated seIng appropriate • Most integrated sebng is one that enables people with disabili9es to interact with people without disabili<es to the fullest extent possible
Olmstead v. L.C.: Unjus<fied segrega<on is discrimina<on • Supreme Court held that Title II prohibits unjus9fied segrega9on of people with disabili9es • Set out “two evident judgments” about ins9tu9onal placement: 1. “perpetuates unwarranted assump<ons that persons so isolated are incapable or unworthy of par9cipa9ng in community life” 2. “severely diminishes the everyday life ac<vi<es of individuals,” including family, work, educa9on and social contacts
Olmstead v. L.C. (cont’d) • Held public en99es are required to provide community-‐based services when: – Such services are appropriate; and – Affected persons do not oppose community-‐based treatment; and – Community-‐based treatment can be reasonably accommodated, taking into account the resources available to the en9ty and the needs of others receiving disability services
When is the ADA’s Integra<on Mandate Implicated? • Not limited to state-‐run facili9es/programs • Applies when government programs result in unjus9fied segrega9on by: – Opera9ng facili9es/programs that segregate people with disabili9es – Financing the segrega9on of people with disabili9es in private facili9es – Promo9ng segrega9on through planning, service design, funding choices, or prac9ces.
Who Does the Integra<on Mandate Cover? • ADA and Olmstead are not limited to individuals in ins9tu9ons or other segregated sebngs • They also extend to people at serious risk of ins9tu9onaliza9on or segrega9on – Example: people with urgent needs on waitlists for services or people subject to cuts in community services leading to the person’s unnecessary ins9tu9onaliza9on.
Significant DOJ Olmstead Enforcement Efforts
Overview
• State-‐operated facili9es (Virginia, Georgia, Delaware) • Private facili9es (nursing facili9es, ICFs, adult care homes) • At-‐Risk Cases (e.g., cuts to cri9cal services) • Segregated Day Sebngs (DOJ finding in OR that state violates ADA by over-‐reliance on employment services in segregated sebngs (eg, sheltered workshops))
At-‐Risk Cases • Significant statement of interest prac9ce suppor9ng private plain9ffs – Cuts to cri9cal services without individualized assessments of impact or excep9ons process – Policies requiring people to first enter an ins9tu9on in order to access community services – Providing services to persons in ins9tu9ons, but not equivalent services to individuals in the community
Private Facili<es
• Nursing homes
– Interven9on in Steward v. Perry (Texas) • Thousands of people with ID/DD in and at-‐risk of entering private nursing homes
– Florida Findings LeRer • Found hundreds of children with complex medical needs unnecessarily in nursing homes and thousands more at-‐risk of entering nursing homes because lack of community alterna9ves and cuts to in-‐home supports
– Also relief in VA agreement
Private Facili<es (cont’d) • Adult care homes (large board and care homes for people with mental illness) – US v. NC – seRlement providing community svs to 3,000+ people in or at risk of entering ACHs • Supported housing, ACT, supported employment, transi9on supports, enhanced QM
– DAI v. Cuomo – Interven9on in suit re people with MI in adult homes in NYC, seeking integrated supported housing + community supports
Private Facili<es (cont’d) • Private ICFs – Statement of Interest in private li9ga9on – Also relief in VA agreement and findings in Miss.
North Carolina Se5lement Agreement • Goals: Integra9on and Self-‐Determina9on • Components: – Housing – Community-‐Based Services – In-‐reach, transi9on planning and diversion – Quality assurance
Who the Agreement Covers • Generally, adults with serious mental illness (SMI) in, or at risk of entry, into an adult care home • Agreement does not apply to persons with primary diagnosis of Alzheimer’s disease or demen9a • Agreement does apply to persons with SMI or SPMI and a co-‐occurring condi9on such as developmental disability, acquired brain injury and/or substance use disorder
Housing Slots (over 8 years) • 3000 Housing Slots • Housing Slots are vouchers or subsidies provided for community-‐based housing • Each housing slot includes a package of tenancy support, transi9on support and support services.
Housing Characteris?cs • Permanent housing with tenancy rights • Enables persons with disabili9es to interact with nondisabled persons to the fullest extent possible • Does not limit ability to access community ac9vi9es at any 9me • ScaRered site, no more than 20% of units occupied by persons with a disability
Housing Characteris9cs (cont’d) • Allow individuals choice in daily ac9vi9es • Priority is for single-‐occupancy housing, unless person chooses roommate • Housing slots can be used in single-‐family housing • Housing slots cannot be used in congregate sebngs. (E.g. adult care homes, group homes, nursing facili9es)
Priority for Housing Slots 16+ beds & 50% • People in IMDs (generally, • • •
•
persons with mental illness) People in adult care homes > 50 beds and > 25% persons with SMI People in adult care homes between 20 and 49 beds and > 40% persons with SMI People with SPMI discharged from a state psychiatric hospital who are homeless or have unstable housing People considered for admission to an adult care home
Community-‐Based Services • Array and intensity of services and supports necessary for successful transi9on • Services and supports iden9fied through person-‐centered planning • Evidence-‐based and recovery-‐focused • Flexible and individualized • ACT, CST, PSR, peer supports, supported employment, case management
Crisis Services • Sufficient to provide 9mely and accessible services • Mobile Crisis Teams, walk-‐in crisis centers, community hospital beds, 24/7 hotline • Provided in the home whenever possible
Transi9on Planning • Assis9ng person to develop plan to promote growth, well-‐being and independence • Based on individual’s strengths, needs, preferences and goals in the most integrated sebng appropriate in all areas of life • Based on principle that people with disabili9es can live in integrated sebngs with appropriate supports • Person-‐Centered • Results in wriRen transi9on plan
Quality Assurance • Ensures housing and services comply with agreement • Ensures people are receiving all the services and supports they need for their health, safety and welfare • Includes monitoring by DHHS, analysis of data, quality of life surveys, regular repor9ng and reviewer
Upcoming Timelines • Pre-‐Admission Screening, In-‐Reach, and Transi9on are underway • July 1, 2013 – Deadline for transi9oning at least 100 people to supported housing – Deadline for ACT teams to be consistent with fidelity models – Deadline for providing supported employment to 100 people
• Auer Aug. 23, 2013: Reviewer’s first annual report
State-‐Operated Facili<es • US v. Virginia SeRlement Agreement – Reforms of en9re ID/DD system; relief for more than 5000 people – HCBS waivers for people transi9oning out of state-‐operated ICFs, youth transi9oning from nursing homes and large ICFs, and people with “urgent needs” on the waitlist (4200 waivers) – Family support program created for people on waitlists (1000 people) – Full range of community-‐based crisis services (crisis hotline, mobile crisis teams, crisis stabiliza9on programs) – Expanded case management – Develop and implement Employment First policy and expansion of supported employment and integrated day opportuni9es – Integrated housing (including subsidies for independent living) – Expansive quality management system for community services
State-‐Operated Facili<es (cont’d) • Other SeRlement Agreements: – US v. GA – community svs. for 1,000+ people in state DD facili9es and on waitlist and 9,000+ people in or at risk of entering state psych hosp. • DD relief includes waivers, family supports, crisis services, and case management
– US v. DE – community svs. for 3,000+ people in or at risk of entering state psych hospital and private facili9es • ACT, crisis services, supported housing, supported employment
State-‐Operated Facili<es (cont’d) • Li9ga9on: – US v. NH – re: people with MI in or at risk of entering state psych hospital and state-‐run nursing facility for people with MI
Open Findings LeRers: – Mississippi Findings LeRer – viola9ons re adults & children in public and private DD and psych facili9es and people on waitlists for comm. svs.
Guidance and Website • Website: www.ada.gov/olmstead – All seRlement agreements, findings leRers, briefs, guidance, tes9mony, speeches, etc.
• Statement of the Department of Jus9ce on Enforcement of the Integra9on Mandate of Title II of the Americans with Disabili9es Act and Olmstead v. L.C. (June 22, 2011) • Faces of Olmstead: People impacted by DOJ’s Olmstead enforcement work
Contact Informa<on Anne Raish Deputy Chief Disability Rights Sec9on Civil Rights Division U.S. Department of Jus9ce Anne.Raish@usdoj.gov 202-‐307-‐0663