1 Roberta Opheim Ombudsman Minnesota Office of the Ombudsman
for Mental Health and Developmental Disabilities
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Minnesota Office of Ombudsman for Mental Health and
Developmental Disabilities 2
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Disclaimers I am not an attorney. I will cover the background
of Olmstead in Minnesota. Sub-Cabinet Agencies will be providing an
overview of their goals and activities so I will not be commenting
directly on the draft plan. Feel Free to ask questions as we go
along. 3
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Ombudsman American Bar Association The Ombudsman is an
independent governmental official, who receives complaints against
government (and government regulated) agencies and/or its officials
from aggrieved citizens, who investigates, and who, if the
complaints are justified, makes recommendations to remedy the
complaints. 4
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Important Function The right to look into Unreasonable Unfair
Oppressive Unnecessarily Discriminatory acts of government even
though they may have been done in accordance with the law or rule.
5
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Ombudsman for MH/DD: Mission Statement The ombudsman for
persons receiving services for treatment for mental illness,
developmental disabilities, chemical dependency, or emotional
disturbance shall promote the highest attainable standards of
treatment, competence, efficiency, and justice. 6
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Who is a Client Any person receiving services or treatment from
an agency, facility or program for: Mental Illness Developmental
Disability Chemical Dependency Emotional Disturbance 7
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Why Call the Ombudsman? You may have a concern or complaint
about services a question about rights a question about an action
of an agency a question about access to services an idea for making
services better a general question or a request for information
about services 8
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Looking back at the Supreme Courts Olmstead decision--and
forward 9
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Olmstead and the ADA The Americans with Disabilities Act of
1990 (the ADA) is a broad federal civil rights law that prohibits
discrimination against persons with disabilities by both public and
private entities. requires reasonable accommodations be made for
persons with disabilities in many different settings. requires
adequate access to public buildings and programsdoesnt just mean
physical access 10
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ADA Title II Public Entities ... [N]o qualified individual with
a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
discrimination by any such entity. 42 U.S.C. 12132 11
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Title II regulations: The Integration Mandate A public entity
shall administer services, programs, and activities in the most
integrated setting appropriate to the needs of qualified
individuals with disabilities. Title 28 of the Code of Federal
Regulations, section 35.130(d). 12
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Olmstead in a nutshell Olmstead vs. L.C. and EW: June 1999
decision by the United States Supreme Court holding that the
unnecessary segregation of individuals with disabilities in
institutions may constitute discrimination based on disability.
Case citation: Olmstead v. L.C., 527 U.S. 581 (1999). 13
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History The plaintiffs, LC and EW, were two women with mental
illness and developmental disabilities Lived in a Georgia state
psychiatric hospital. Wanted to live and receive services in the
community and their doctors agreed that discharge to the community
was appropriate. Problem: state had a long waiting list for few
available community placements. So: LC and EW remained
unnecessarily institutionalized for years. 14
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They sued: LC and EW claimed that Georgia violated the ADA
integration mandate by failing to provide services in the most
integrated setting appropriate to meet their needs--in the
community, not an institution. After years of litigation, the
Supreme Court was asked to decide if unnecessary
institutionalization is discrimination under the ADA. LC and EW
WON, settled the case, and received community supports: housing,
training programs, and employment. 15
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How did the Court reach its Result? It first focused on key
congressional findings contained in the ADAs preamble: [S]ociety
has tended to isolate and segregate individuals with disabilities
and, despite some improvements, these forms of discrimination
against individuals with disabilities continue to be a serious and
pervasive social problem. 16
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Discrimination against individuals with disabilities persists
in such critical areas as institutionalization. Individuals with
disabilities continually encounter various forms of discrimination,
including outright intentional exclusion, failure to make
modifications to existing facilities and practices, and
segregation. See 42 U.S.C. 12101(a)(2), (3), (5). 17
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The Court concluded: Unjustified isolation is properly regarded
as discrimination on the basis of disability under the ADA.
integration means opportunities to interact with non-disabled
persons, not just being in a less restrictive setting. Congress
intended the ADA to step up earlier legislative efforts to secure
community living opportunities for people with disabilities 18
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Client on the outcome of litigation To live in my own home,
well I feel very grateful to all the people who helped me to get my
own home and I feel very good about my home. I have a great life
and I can make my own decisions. And I can handle my own business,
and I feel good about myself. -- Elaine Wilson, from an interview
published by ILRU 19
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Courts Two Part Test: A person will be presumed to be
unnecessarily institutionalized (subject to certain legal defenses)
if: The states treating professionals determine that community
placement is appropriate for the person, and The person does not
oppose transfer from institutional care to a more integrated
setting. 20
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Ability to challenge states professionals The Courts decision
left room for individuals to show: That an independent assessment
of the individual supports the individuals ability to live in the
community and/or That the states assessment is incorrect,
incomplete or otherwise unreasonable. 21
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Olmstead also applies to those at risk of institutionalization
States have an obligation to prevent institutionalization The ADAs
protections also apply to persons already living in the community
when a states actions may result in institutionalization Examples
State cuts to critical in-home supports Differing eligibility
criteria that favor nursing home over community 22
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The Court defined some limits: The state might be able to show
that the requested relief would result in a fundamental alteration
of the states services, a defense for the state. Another defense
the state can raise is the existence of a comprehensive,
effectively working plan for placing persons in more integrated
settings. 23
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Fundamental Alteration A fundamental alteration under the ADA
would be one that changes the essential nature of a program.
Modification of the states financial or clinical eligibility
standards is not automatically a fundamental alteration. The cost:
The courts can require the state to pay costs, but need to look at
overall costs and the overall effect of these costs. 24
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Fundamental Alteration The resources available to fund
community services: Courts may require the state to transfer
institutional resources to help fund community- based placements,
but must consider the impact on the states ability to meet all of
its obligations. The state has an obligation to provide services in
an equitable manner to all eligible persons with disabilities: The
Court recognized the states need to provide a range of services to
meet the needs of persons with disabilities, without preferential
treatment for one individual or group. A person cannot skip to the
top of the waiting list by filing a lawsuit for community services.
25
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Comprehensive Plan Comprehensive plan - If a state demonstrates
that it has A "comprehensive, effectively working plan for placing
qualified persons in most integrated settings, and a waiting list
created by the state that moves at a reasonable pace not controlled
by the state's endeavors to keep its institutions fully populated
Then it may be meeting its integration obligations under Olmstead
26
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The take away from Olmstead: The ADA can require a state to
make reasonable modifications to its programs and services to
provide integrated community-based services, rather than relying on
institutional placements, including segregated placements in the
community. 27
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Difficult Questions Remain What are the criteria for evaluating
a states "comprehensive, effectively working plan? When might a
reasonable modification become a fundamental alteration? Does the
state need to seek additional appropriations or maximize
participation in Medicaid programs? What costs should be
considered, and how do you compare the costs for various types of
services? 28
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Federal Reforms aimed at integration MFP CFSS Improve state and
federal quality standards for HCBS Assure community-based character
of HCBS- funded settings; sunshine requirements Establish standards
to assure that states meeting promised goals 29
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Increased use of community supports and HCBS: Allows people to
stay at home and out of institutions Can be individualized to each
persons needs Brings more dignity and independence Potential to
reduce federal and state costs over the long term 30
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Why now? 31 I thought Minnesota did not need an Olmstead Plan
because we already have a waiver system providing Home and
Community Based Services!
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State Plans In response to both the Supreme Courts suggestion
that an effective community integration plan that moved at a
reasonable pace would go a long way toward satisfying Olmsteads
mandate, and the Administrations letters and other guidance, 29
states have issued Olmstead-related plans or reports. Under
pressure from the federal court, legislative auditor and from the
community, Minnesota has taken first steps toward an Olmstead state
plan. 32
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Olmstead in Minnesota The Jensen lawsuit was based in part on a
report by OMHDD; lawsuit alleged that METO residents were
unlawfully and unconstitutionally secluded and restrained. The
State of Minnesota agreed to make, as a top concern, the safety and
quality of life of the Residents of METO; states that its goal is
to provide these residents with a safe and humane living
environment free from abuse and neglect. The State also agrees to
extend this policy to all people with developmental disabilities,
and to those receiving waivered services. 33
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Settlement of Jensen case Principles to be followed: Olmstead
(most integrated setting) Person centered planning, Use of positive
behavioral supports, Opportunity for families to provide input and
feedback about the facility Closure of METO (Minnesota Extended
Treatment Options) June 30, 2011. METO served individuals with
developmental disabilities who posed a risk to public safety.
replaced by the Specialty Health System - Cambridge 34
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Aversives and positive supports Prohibited aversive techniques:
Mechanical restraints such as metal handcuffs, leg hobbles, cable
tie cuffs, plasticuffs, flexicuffs, soft cuffs, posey cuffs; manual
restraint, prone restraint, chemical restraint, seclusion, and the
use of painful techniques to change behavior through punishment of
residents with developmental disabilities. Medical/chemical
restraints and psychotropic/neuroleptic medications shall not be
used for punishment Committee to modernize Rule 40 ( which
regulates use of aversive and deprivation procedures). to reflect
best practices, positive behavioral supports, and Olmstead
principles. 35
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Established Olmstead Planning committee Issued public
recommendations October 2012. State and DHS shall develop and
implement a comprehensive Olmstead plan that uses measurable goals
to increase the number of people with disabilities receiving
services that best meet their individual needs and in the Most
Integrated Setting, and is consistent and in accord with the U.S.
Supreme Courts decision in Olmstead v. L.C. 36
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Jensen and Minnesota Security Hospital Within sixty (60) days
upon Court approval of this Agreement, no later than July 1, 2011,
there shall be no transfers or placements of persons committed
solely as a person with a developmental disability to the Minnesota
Security Hospital. No later than December 1, 2011, persons
presently confined at Minnesota Security Hospital who were
committed solely as a person with a developmental disability and
who were not admitted with other forms of commitment or predatory
offender status set forth in paragraph 1, above, shall be
transferred by the Department to the most integrated setting
consistent with Olmstead v. L.C. 37
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Jensen and Anoka Regional Treatment Center Persons committed
solely as a person with a developmental disability may be
transferred to AMRTC only if they have an acute psychiatric
condition. Within thirty (30) days of the Courts approval of this
Agreement, any AMRTC resident committed solely as a person with a
developmental disability who does not have an acute psychiatric
condition will be transferred from AMRTC. The transfer shall be to
the most integrated setting consistent with Olmstead v. L.C.
38
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Olmstead Planning Committee The goal was to provide
recommendations that ensure Minnesotans with disabilities: have
choices about how to live, where to live and who to live with; are
served in a community-based setting that is most fitting to their
needs and their desires; and are treated first and foremost as a
person with a desire for self-determination who happens to have a
disability. 39
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2013 Legislative auditor report on SOS from an Olmstead lens
Many patients have stayed longer than necessary in state run
hospitals due to inadequate community placement options.(p.41-43)
Anoka40% of beds occupied by those not needing to be there: Long
waiting lists for those who do need treatment at Anoka Problem
compounded by loss of housing, jobs, supports MSH: lack of
psychiatrists and effective treatment 19% of patients there more
than 10 years More patients could be discharged but there is
nowhere for them to go (over 80 on transition unit of MSH.) 40
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Recommendations include: Ensure the development and
availability of placement options and payment options (p.111-12)
Amend the commitment act to ensure periodic court review of all
patients, including DD and MID Improve treatment programs and
effectiveness: More mental health programming More psychiatrists
Effective training for staff Improve the administration and
operation of SOS 41
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Next Steps One of the Committee's recommendations asked "that
the Governor establish an Olmstead Sub-Cabinet to ensure the most
efficient and effective inter-agency coordination, planning and
implementation of an Olmstead Plan. On January 28, 2013, Governor
Mark Dayton issued an Executive Order establishing an Olmstead
Sub-Cabinet to develop and implement a comprehensive Minnesota
Olmstead Plan. They will meet on the second Tuesday of every month
from 3:00pm - 4:30pm in the Elmer Andersen Building in St. Paul.
42
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Executive Order In January 2013, Governor Mark Dayton issued an
Executive Order establishing a Sub-Cabinet to develop and implement
a comprehensive plan supporting freedom of choice and opportunity
for people with disabilities. The Olmstead Plan Sub-Cabinet,
chaired by Lieutenant Governor Yvonne Prettner Solon, includes the
Commissioners or Commissioners designee from the following State
agencies: Department of Human Services; Minnesota Housing Finance
Agency; Department of Employment and Economic Development;
Department of Transportation; Department of Corrections; Department
of Health; Department of Human Rights; and Department of Education.
Representatives from the Office of the Ombudsman for Mental Health
and Developmental Disabilities and the Governors Council on
Developmental Disabilities are ex officio members of the
Sub-Cabinet. 43
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Executive Order cont. The Sub-Cabinet will evaluate policies,
programs, statutes and regulations of state agencies against the
standards set forth in the Olmstead decision to determine whether
any should be revised or modified or require legislative action in
an effort to improve the availability of community- based services
for people with disabilities. The Sub- Cabinet will seek input from
consumers, families of consumers, advocacy organizations, service
providers and others. Core groups of staff from Sub-Cabinet
agencies are currently working to develop a Minnesota Olmstead Plan
document that will guide the states efforts. 44
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Olmstead is Broader than HCBS The Olmstead Principles go beyond
individuals receiving services in institutional settings. It is
Support Services and opportunity for persons with disabilities to
engage in all aspects of life in the most integrated settings. That
includes a broad array of community life such as: Housing Workforce
and employment Education Transportation Health care Corrections
Social/Community Life 45
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What to Look For State Plan By November1, 2013 the State and
the Department shall develop and implement a comprehensive Olmstead
plan that uses measurable goals to increase the number of people
with disabilities receiving services that best meet their
individual needs and in the Most Integrated Setting, and is
consistent and in accord with the U.S. Supreme Courts decision in
Olmstead v. L.C. State may request extension Public comment
opportunity 46
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Federal Court Oversight After the plan is completed and
approved by the Olmstead Sub Cabinet, it must be submitted to The
Court Monitor in the Jensen Settlement Agreement The Federal Court
Judge To determine if the State of Minnesota is in substantial
compliance with the Jensen Settlement Agreement 47
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When the plan is done is Minnesota Done? NO Once the plan is
complete the state must implement the plan and measure outcomes
achieved related to plan goals. This plan is a living plan intended
to be modified as data and feed back emerge along with new research
on best practices. This responsibility is ongoing and is a civil
right so we have to permanently integrate this into the fabric of
services. 48
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What can you do? Become an informed citizen as to the civil
rights for all citizens of Minnesota who need supports as a result
of their disability. Read Olmstead materials and provide comments
about the plan including what you like, what is missing, which
steps need to be given priority and any ideas you have about
helping to make sure Minnesotans with disabilities can experience a
life that includes full inclusion with others who do not have a
disability. Monitor to ensure the state fulfills its obligations
under Olmstead. 49
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Resources Kaiser Commission -
http://www.kff.org/medicaid/upload/olmstead-at-five-
assessing-the-impact.pdf
http://www.kff.org/medicaid/upload/olmstead-at-five-
assessing-the-impact.pdf Minnesotas Olmstead Planning Committee -
http://www.dhs.state.mn.us/main/idcplg?
http://www.dhs.state.mn.us/main/idcplg? Department of Justice
Olmstead Site - http://www.ada.gov/olmstead/
http://www.ada.gov/olmstead/q&a_olmstead.pdf 50