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The Olmstead Decision and Community Integration 1 Where Does it Come From? Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of disability in any program or activity that receives Federal financial assistance. 29 U.S.C. 794. “Recipients shall administer programs and activities receiving Federal financial assistance in the most integrated setting appropriate to the needs of qualified individuals with handicaps.” 24 CFR § 8.4(d). Recipients may not provide different or separate housing, aid, benefits, or services to individuals with disabilities or to any class of individuals with disabilities unless such action is necessary to provide qualified individuals with disabilities with housing, aid, benefits, or services that are as effective as those provided to others. 24 CFR § 8.4(b)(1)(iv). 2 What Does This Mean? One of the main tenets of Section 504 is the integration mandate, to ensure that housing programs and services are offered in the most integrated setting possible. Persons with disabilities, including those individuals transitioning from institutional to community-based settings, have the right to participate in HUD-funded programs and are entitled to equal opportunity in housing. Segregated, separate services are prohibited, unless necessary to be equally effective. 3 Title II of the ADA Principle of integration under Section 504 was carried forward in the ADA in 1990. Title II of the ADA prohibits discrimination against individuals with disabilities in all services, programs, and activities of public entities. 42 USC § 12132. Implementing regulations are at 28 CFR part 35. 4 Title II of the ADA Title II regulations require public entities to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 CFR § 35.130(d). The “most integrated setting” is defined as “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 CFR Pt.35, App. A. 5 Why Does it Matter? 6 Olmstead v. L.C. Supreme Court held that title II of the ADA prohibits the unjustified segregation of individuals with disabilities. Lois Curtis Public entities are required to provide community-based services to persons with disabilities when: 7 (a) such services are appropriate; (b) the affected persons do not oppose community-based treatment; and (c) community-based services can reasonably be accommodated taking into account the resources available to the entity and the needs of others who are receiving disability services from the entity. Olmstead v. L.C. “Institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life” “Confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contracts, work options, economic independence, educational advancement, and cultural enrichment” Olmstead v. L.C., 527 U.S. 581, 119 S.Ct. 2176 (1999) available at http://www.law.cornell.edu/supct/html/98-536.ZS.html 8 Defining the “Integration Mandate” Since the Supreme Court’s decision in Olmstead, further clarification on what constitutes the “most integrated setting” appropriate for persons with disabilities. Significant DOJ litigation, state settlement agreements, court orders and consent agreements. States taking voluntary, affirmative Olmstead planning and implementation efforts. 9 Defining the “Integration Mandate” Segregated Settings: Exclusively or primarily with individuals with disabilities; Regimentation in daily activities, Lack of privacy or autonomy 10 Policies limiting visitors, or limits on individuals’ ability to engage freely in community activities and to manage their own activities of daily living). Settings that provide for daytime activities primarily with other individuals with disabilities.” (DOJ Statement). Defining the “Integration Mandate” Integrated Settings: Access to mainstream society: Scattered-site housing 11 availability of supportive services. Not located in Facility community activities opportunities; choice of daily life activities. that provides institutional treatment or custodial care; on the grounds of, or immediately adjacent to, a public institution. Not a housing complex designed expressly around an individual’s diagnosis or disability. Defining the “Integration Mandate” DOJ Statement on Enforcement of the Integration Mandate of Title II of the ADA and Olmstead v. L.C., http://www.ada.gov/olmstead/q&a_olmstead.htm Department of Health and Human Services (HHS) NPRM revising regulations implementing Medicaid Home and Community-Based Services (HCBS) Waivers, 76 Fed. Reg. 21311 12 Executive Order 13217: Community-Based Alternatives for Individuals with Disabilities On June 18, 2001, President Bush signed Executive Order 13217 promoting community-based alternatives, rather than institutional settings, for individuals with disabilities. The Executive Order also called for designated Federal agencies, including HUD, to assist the States and localities to swiftly implement the U.S. Supreme Court’s 1999 decision in Olmstead v. L.C. Also directed the Department of Health and Human Services (HHS) to coordinate an effort by HUD and the other Federal agencies to evaluate their own policies, programs, and regulations to determine whether any should be revised or modified to improve the availability of community-based services for qualified persons with disabilities. 13 Executive Order 13217 HUD’s self evaluation available at: www.hhs.gov/newfreedom HUD Public Affairs Press Release, “HUD, HHS ANNOUNCE JOINT EFFORT TO ASSIST NEARLY 1,000 NON-ELDERLY PERSONS WITH DISABILITIES TO MOVE FROM INSTITUTIONS TO INDEPENDENCE” http://portal.hud.gov/hudportal/HUD?src=/press/press_rel eases_media_advisories/2011/HUDNo.11-003 14 Money Follows the Person (MFP) The MFP Rebalancing Demonstration Program was authorized by Congress in section 6071 of the Deficit Reduction Act of 2005 (DRA). The program was designed to provide assistance to States to balance their long-term care systems and help Medicaid enrollees transition from institutions to the community. 15 Money Follows the Person (MFP) Congress initially authorized up to $1.75 billion in Federal funds through fiscal year (FY) 2011 to: 1. 2. 3. 4. Increase use of Medicaid Home Based Community Services (HCBS) and reduce use of institutionally-based services; Eliminate barriers and mechanisms in State law, medicaid plans, or budgets that prevent/restrict the flexible use of Medicaid funds to enable Medicaid-eligible individuals to receive long-term care in the settings of their choice; Strengthen the ability of Medicaid programs to assure continued provision of HCBS to those individuals who choose to transition from institutions; and, Ensure that procedures are in place to provide quality assurance and continuous quality improvement of HCBS. Section 6071, Public Law Deficit Reduction Act of 2005, Public Law 109-171 available at https://www.cms.gov/CommunityServices/20_MFP.asp 16 Current Events: United States v. Georgia The Justice Department began its investigation in 2007 found that preventable deaths, suicides and assaults occurred with alarming frequency in the state hospitals. Also found state failed to serve individuals with mental illness and developmental disabilities in the most integrated setting appropriate to their needs, in violation of the Title II of the ADA, Section 504 and the Olmstead decision. In January 2010, the department filed a freestanding complaint under the ADA and a motion for immediate relief seeking to protect individuals confined in the hospitals from continued segregation and from threats of harm to their lives, health and safety. The department has entered into extensive settlement negotiations with Georgia, the Office for Civil Rights and local mental health advocates. http://www.thegao.org/Alerts.htm 17 Current Events: United States v. Georgia Georgia will stop admitting individuals with developmental disabilities to its staterun hospitals by July 1, 2011, and will transition all individuals with developmental disabilities already living in the hospitals to community settings by July 1, 2015. The state will provide support coordination services to ensure individuals will have access to the necessary medical, social, educational, transportation, housing, nutritional and other services. The state will provide services in community settings for 9,000 individuals with mental illness who currently receive services in the state hospitals, are frequently readmitted to state hospitals, are frequently seen in emergency rooms, are chronically homeless or are being released from jails or prisons. The agreement also requires the establishment of 24-hour crisis service centers, as well as mobile crisis teams to respond to individuals experiencing a crisis anywhere in the community. Settlement available at: http://content.govdelivery.com/attachments/USEOPWHPO/2010/10/19/file_attachm ents/10775/Settlement_Agreement_signed_2010_10_19.pdf 18 The Year of Community Living “The Olmstead ruling was a critical step forward for our nation, articulating one of the most fundamental rights of Americans with disabilities: Having the choice to live independently. I am proud to launch this initiative to reaffirm my Administration’s commitment to vigorous enforcement of civil rights for Americans with disabilities and to ensuring the fullest inclusion of all people in the life of our nation.” – President Obama, June 2009 19 Activities to Further Olmstead Compliance DOJ has engaged in Olmstead enforcement efforts in approximately 40 matters in 25 states since the start of this administration. HUD will be helping support state settlements. PHAs work with local recipients to place targeted populations into existing HUD-funded projects, for example: 20 Housing Opportunities for Persons with HIV/AIDS (HOPWA) Program Shelter Plus Care Program Supportive Housing Program Section 811 Supportive Housing Program for Persons with Disabilities HOME rental units Resources Secretary Donovan’s June 2009 letter encouraging PHAs to offer preferences for persons transitioning from institutions into communitybased settings, http://www.hud.gov/offices/pih/programs/ph/am/newsletter/doc015.pdf PIH Notice 2005-5 “New Freedom Initiative, Executive Order 13217: ‘Community-Based Alternatives for Individuals with Disabilities’ and the Housing Choice Voucher Program, http://www.hud.gov/offices/pih/publications/notices/05/pih2005-5.pdf Guidance for FHEO Staff in Assisting Persons with Disabilities Transitioning from Institutions, available at http://portal.hud.gov/hudportal/documents/huddoc?id=disabilitiestransitioni ng.PDF DOJ Olmstead website, http://www.ada.gov/olmstead/index.htm 21 Questions / Comments 22