Transcript 2010 DOJ Olmstead Enforcement

Olmstead Enforcement
and the US v. Virginia
Settlement Agreement
Department of Justice
Civil Rights Division
Special Litigation Section
Olmstead is a top priority for
DOJ’s Civil Rights Division
• “Year of Community Living”
– "The Olmstead ruling . . . articulat[ed] one of the most
fundamental rights of Americans with disabilities: Having
the choice to live independently. [T]his initiative reaffirms
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 22, 2009
• DOJ Olmstead enforcement efforts
– approx 40 matters in 25 states over the past
several years
DOJ’s Olmstead Enforcement
Objectives
• Help people with disabilities live like people
without disabilities
• Help people with disabilities have true
integration, independence, choice and selfdetermination in all aspects of life – where
people live, how they spend their days, and
real community membership
Objectives (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 Lessons
• Not just about moving people out of
institutional settings; focus on creating quality
community alternatives
• Engagement of a range of stakeholders –
consumers, families, advocates, providers – is
essential
Important Lessons (cont’d)
• Access to quality community services and
affordable, integrated housing critical to
success of Olmstead efforts
– Cross-agency collaboration with DOJ, HHS, and
HUD
Range of DOJ “Tools”
• Investigations & Findings Letters leading to
Settlement Agreements or Litigation for
system reform
• Intervention in private Olmstead litigation
• Statements of Interest practice in private
litigation on many Olmstead issues
• Olmstead Technical Assistance Guidance
• Olmstead website (www.ada.gov/olmstead)
Legal Background
Title II of the ADA
• Prohibits discrimination by public entities in
services, programs and activities
• Integration regulation requires administration
of services, programs and activities in the
most integrated setting appropriate
• Most integrated setting is one that enables
people with disabilities to interact with
people without disabilities to the fullest
extent possible
Olmstead v. L.C.: Unjustified
segregation is discrimination
• Supreme Court held that Title II prohibits unjustified
segregation of people with disabilities
• Set out “two evident judgments” about institutional placement:
1. “perpetuates unwarranted assumptions that persons so
isolated are incapable or unworthy of participating in
community life”
2. “severely diminishes the everyday life activities of
individuals,” including family, work, education and social
contacts
Olmstead v. L.C. (cont’d)
• Held public entities 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 entity and the needs of others
receiving disability services
When is the ADA’s Integration
Mandate Implicated?
• Not limited to state-run facilities/programs
• Applies when government programs result in
unjustified segregation by:
– Operating facilities/programs that segregate
people with disabilities
– Financing the segregation of people with
disabilities in private placements
– Promoting segregation through planning, service
design, funding choices, or practices.
Who Does the Integration
Mandate Cover?
• ADA and Olmstead are not limited to
individuals in institutions or other segregated
settings
• They also extend to people at serious risk of
institutionalization or segregation
– Example: people with urgent needs on waitlists
for services or people subject to cuts in
community services leading to the person’s
unnecessary institutionalization.
Significant DOJ Olmstead
Enforcement Efforts
State-Operated Facilities
• Settlement Agreements:
– US v. DE – community svs. for 3,000+ people in
or at risk of entering state psych hospital and
private facilities
• ACT, crisis services, supported housing, supported
employment
– US v. VA – community svs. for 4,200+ people in
state DD facilities & on waitlist for comm. svs.
• HCBS waivers, crisis services, family supports, case
management, supported employment, enhanced QA
State-Operated Facilities (cont’d)
– US v. GA – community svs. for 1,000+ people in
state DD facilities and on waitlist and 9,000+
people in or at risk of entering state psych hosp.
• Litigation:
– 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 letters:
– Mississippi Findings Letter – violations re adults &
children in public and private DD and psych facilities and
people on waitlists for community system
Private Facilities
• Adult care homes (large board and care
homes for people with MI)
– US v. NC – settlement providing community svs to
3,000+ people in or at risk of entering ACHs
• Supported housing, ACT, supported employment,
transition supports, enhance QM
– DAI v. Cuomo – DOJ intervened in litigation
regarding people with MI in adult homes in NYC,
seeking integrated supported housing +
community supports
Private Facilities (cont’d)
• Nursing homes
– Intervention in Steward v. Perry (Texas)
• Thousands of people with DD in and at-risk of entering
private nursing homes
– Florida Findings Letter regarding children with DD
in nursing homes
• Also relief in VA agreement
• Private ICFs
– Statement of Interest in private litigation
Supported Employment and
Integrated Day Activities
• ADA and Olmstead not limited to where people
live; also applies to how people spend their
days:
– Settlements in VA, DE, NC and GA– Expansion of
supported employment & integrated day activities
– Lane v. Kitzhaber (Oregon) DOJ Statement of
Interest that ADA’s integration mandate applies to
more than residential services, but to all “programs,
services, and activities” of public entities, including
employment and day services; court agreed
Supported Employment (cont’d)
• Findings letter in Oregon, concludes that:
– OR plans, structures and administers its
employment and vocational services in a way that
over-relies on segregated center-based work
– Center-based work has indicia of segregation
•
•
•
•
•
Little to no contact with non-disabled peers
Work doesn’t prepare PWD for integrated e-ment
Long stays, little chance to move to integrated e-ment
Little autonomy as to tasks or matching skills to tasks
Segregated layouts (isolated from mainstream
transportation and businesses, separate staff areas, etc.)
Supported Employment (cont’d)
• State contributes to over-reliance on centerbased work by:
– Failure to develop and fund enough community-based
supported employment (decrease in capacity over the
last decade)
– Students transitioning from schools are not given
an option of supported employment and many
schools refer students to centers for assessment
– Voc rehab assessment tool that leads to finding most
people with ID/DD ineligible and assessment done by
centers
Supported Employment (cont’d)
• Recommended remedial measures include:
– Increase supported employment capacity
– Improve school transition to focus on work in
integrated settings and start planning earlier
– Ensure VR assessments and other practices don’t
lead to unnecessary ineligibility
– Implement plan for transition planning for people
currently in center-based work who are
appropriate for and, after inreach, want supported
employment
At-Risk Cases
• Significant statement of interest practice
supporting private plaintiffs
– Cuts to critical services without individualized
assessments of impact or exceptions process
– Policies requiring people to first enter an
institution in order to access community services
– Providing services to persons in institutions, but
not equivalent services to individuals in the
community
Guidance and Website
• Statement of the Department of Justice on
Enforcement of the Integration Mandate of
Title II of the Americans with Disabilities Act
and Olmstead v. L.C. (June 22, 2011)
• Website: www.ada.gov/olmstead
– All settlement agreements, findings letters, briefs,
guidance, testimony, speeches, etc.
• Faces of Olmstead: People impacted by DOJ’s
Olmstead enforcement work
Virginia Settlement Agreement
Goals
of Settlement Agreement
 Integration
 Self-determination
 Quality Services
 Platform for Progress
Topics
in Settlement Agreement
1. Waivers
6. Case Management
2. Family Supports 7. Quality Assurance
3. Crisis System
8. Implementation
4. Integrated Housing
5. Integrated Employment
Waivers
(over 10 years)
• 800 Waivers  Training Center to community
• 3,000 Waivers  ID on “urgent” waitlist &
youth with ID in private institutions
• 450 Waivers  DD on waitlist & youth with
DD in private institutions
• Helps to shift Virginia’s disability system to a
Community System
Waivers (Cont’d)
• Waivers are PRIORITIZED to the groups on
previous slide
• But any UNUSED Waivers can be shifted to
other groups
Family Supports
• A comprehensive and coordinated set of
strategies that are designed to ensure that
families have access to resources, supports
and services.
• By 2014 = 1,000 Individuals not receiving Waiver
Crisis System
• Mobile Crisis Teams
In-home
24-hour
Preventative
• 24/7 Crisis Hotline (statewide)
Crisis System (cont’d)
• Crisis Stabilization
Short-term
Last resort
Small
Not on Training Center grounds
Integrated Housing
• Home First
• Belief that people with disabilities can
live in their own homes, family homes,
or small integrated housing (4 or fewer
beds)
• Priority to your own home/family home
Integrated Housing (cont’d)
• Home First 
• Meaningful options & choice
• Coordination with providers and
families
• Peer-to-peer/ Family-to-family
Integrated Housing (cont’d)
• Home First 
• If not home  then small congregate
setting (4 or fewer beds)
• If not small setting  then BARRIER
BUSTING (Example)
Integrated Housing (cont’d)
• $800,000 State fund
Supported Employment
• Employment First policy
– Individual supported employment in integrated
settings first and priority service option
– Minimum or competitive wages
– Employment services and goals part of annual ISPs
• Implementation plan to increase integrated
day opportunities, including:
– Supported employment
– Community volunteer activities
– Community recreation activities
Supported Employment (cont’d)
• Annual baseline information and targets to
increase the number of people receiving
waivers who enroll in supported employment
and remain in integrated work settings
• Training on Employment First policy and
strategies
Case Management
• Who’s involved?
• Professionals & nonprofessionals who
provide individualized supports
• Individuals being served
• Other persons important to the indv.
Case Management (cont’d)
• What’s involved?
• Regular face-to-face meetings
• Regular visits to the residence
• Individual Support Plans
• Training
Case Management (cont’d)
• What’s involved (cont’d)?
• Enhanced case mgmt. for indv. with:
• providers w/ conditional or provisional
licenses
• more complex needs
• experiencing serious crises
• in large congregate settings
• discharged from Training Center
Quality Assurance
• Virginia must collect & analyze
reliable data to ensure that
services are good quality and
meet individuals’ needs.
• Enhanced trending of data by
DBHDS
Quality Assurance (cont’d)
• Expanded reporting for providers
 Safety
 Physical and mental well being
 Avoiding crises
 Stability
 Choice & self-determination
Quality Assurance (cont’d)
• Expanded reporting for providers
 Community inclusion
 Access to services
 Provider capacity
Quality Assurance (cont’d)
• Expanded review through licensing
• Expanded training
 Core competency-based
 Person-centered
• Expanded Case Mang (as noted in
earlier slides)
Quality Assurance (cont’d)
• Providers must develop a Quality
Improvement (“QI”) program
• Virginia will use Quality Service
Reviews (“QSRs”) to evaluate the
quality of services
Implementation
• Oversight
o
Independent Reviewer
 Donald Fletcher
• Over 40 years experience in DD/ID
programs
• Assisted by subject-matter expert
consultants
Implementation (cont’d)
• Oversight
o
Independent Reviewer (cont’d)
 Assessing Compliance
•
•
•
•
Analyzing data
Observing programs and services
Engaging with Stakeholders
Having ongoing discussions with State,
CSBs, & Providers
 Issuing public compliance reports
Implementation (cont’d)
• Oversight
o
Department of Justice
• Analyzing data
• Engaging with Stakeholders
• Having ongoing discussions with State &
other officials
o Stakeholders
• Participating in Regional Quality Councils
Implementation (cont’d)
• Stakeholder Input
o
With DOJ, the State, and Independent
Reviewer
• Accountability
Ongoing involvement of the DOJ &
Stakeholders
o Agreement is court enforceable
o
Website
www.justice.gov/crt/about/spl/virginia-ada.php
-Settlement Agreement
-Summary of Settlement Agreement
-Fact Sheet
-Complaint
-Investigative Findings
Contact Information
Aaron Zisser
[email protected]
202-305-3355
Kyle Smiddie
[email protected]
202-307-6581
Bo Tayloe
Alison Barkoff
[email protected] [email protected]
202-514-8103
202-307-3216
Department of Justice
Civil Rights Division
Special Litigation Section