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Budget Symposium

OACBDDJohn L. Martin, Director

August 21, 2013

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AgendaThe

Connection between the DODD FY 14

and 15 Biennium

Budget and Olmstead

National Trends

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Olmstead and the Department of Justice:•Continued movement away from ICF/IID to waivers and smaller settings.•Movement from “sheltered work” supportive employment.

Supreme Court Upholds Americans with Disabilities Act ‘Integration Mandate’ in Olmstead decision on 6/22/99

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In rejecting the state of Georgia’s appeal to enforce institutionalization of individuals with disabilities, the Supreme Court affirmed the right of individuals with disabilities to live in their community in its 6-3 ruling against the state of Georgia in the case Olmstead v. L.C. and E.W.

The ‘integration mandate’ of the Americans with Disabilities Act (ADA) requires public agencies to provide services “in the most integrated setting appropriate to the needs of the qualified individuals with disabilities.”

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“Olmstead was brought by, and thus decided in the context of, two women with developmental disabilities who were challenging their unnecessary segregation in a residential institution owned and operated by the State. Id. at 593. Nevertheless, neither the principles of the decision nor the integration regulation is limited to the decision’s particular facts. Thus, courts have applied the Olmstead Court’s analysis to numerous other facts and circumstances involving the unjustified isolation of persons with disabilities, including claims by persons with physical or non-mental disabilities, claims to prohibit unnecessary segregation in private segregated facilities funded under the state’s disability services system, and claims to prohibit cuts to community services that would place persons at risk of unnecessary institutionalization.”Taken from the STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICALane v. Kitzhaber, 2:12-cv-00138-ST filed by Thomas E. Perez on April 20, 2012 in the Oregon DOJ action.

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“Just as the text of Title II and the integration regulation is not restricted to person with mental disabilities, to state-owned facilities, or to persons already institutionalized, so too is this statutory and regulatory text not limited solely to residential settings. Accordingly, the U.S. Department of Justice has continued to make clear that the integration regulation prohibits the unnecessary segregation of persons with disabilities by public entities in non-residential settings, including segregated sheltered workshops.”Taken from the STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICALane v. Kitzhaber, 2:12-cv-00138-ST filed by Thomas E. Perez on April 20, 2012 in the Oregon DOJ action.

Olmstead Activity

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In 2009, the Civil Rights Division launched an aggressive effort to enforce the Supreme Court’s decision in Olmstead v. L.C., a ruling that requires states to eliminate unnecessary segregation of persons with disabilities and to ensure that persons with disabilities receive services in the most integrated setting appropriate to their needs.

Olmstead Activity

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The Department of Justice continues to work with state and local governments officials, disability rights groups and attorneys around the country, and with representatives of the Department of Health and Human Services, to fashion an effective, nationwide program to enforce the integration mandate of the Department’s regulation implementing title II of the ADA.

Olmstead Activity

An active Department of Justice armed with Olmstead and the ADA.•40 actions in 25 states in recent years

–Settlement agreement–Litigation–Findings Letter

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Ohio’s Olmstead Concerns

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States with over 1,000 people in State Institutions age 16 and over

(2009 - 2011)

State% decreased

in 2 years

CPD # of Beds Ranking *

1. Texas 12% 474 4,331 452. New Jersey 2% 622 2,649 493. Illinois 12% 537 2,034 394. California 19% 908 1,774 225. North Carolina 4% 468 1,572 426. Mississippi 3% 310 1,333 517. New York 12% 1,430 1,313 248. Ohio 14% 511 1,228 339. Pennsylvania 6% 753 1,174 3210. Virginia 7% 582 1,105 37National 12% 29,574

* Indicates overall ranking of all states and D.C., number of beds adjusted for population

•20 states have fewer than 100 people living in state institutions with over 16 beds.

•13 states no longer operate any facilities.

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State with more than 1,000 private ICF/IID Beds 16 beds and above for FY 11

State # of beds1. Ohio 3,4171Illinois 3,3842California 2,0923New York 2,0034Pennsylvania 1,8425Florida 1,5456Iowa 1,454National 23,603

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15 states have no one living in a private facility larger than 16.

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Nationally, over the past 10 years, the number of people living in private facilities larger than 16 beds has decreased by 33%. In Ohio, we have actually increased by 6%.

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Our Olmstead concerns extend

beyond the ICF/IID program.

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Of the money spent in Adult Services

7% - Supported Employment93% - Sheltered Work/Enclaves

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There are more people receiving

services in sheltered workshops in Ohio

than any other state.18

The Data Trail

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Sheltered Workshop (SW)State SW People Served1. Ohio 17,1182. New York 14,1663. Minnesota 11,5974. California 10,6085. Pennsylvania 9,9156. Wisconsin 6,5297. Michigan 4,4418. Indiana 4,2249. Massachusetts 3,64010. North Carolina 3,131

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Sheltered Workshop (SW)State SW Person Count Per 100K1. Minnesota 2172. South Dakota 1963. Ohio 1484. Wisconsin 1145. Iowa 936. Rhode Island 877. Pennsylvania 788. New York 739. Oregon 6610. Indiana 65

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Integrated Employment (IE)State IE Person Count Per 100K1. Vermont 1552. Connecticut 1333. Washington 1094. New Hampshire 975. Oregon 946. Maryland 847. Rhode Island 768. Ohio 679. Oklahoma 6510. Iowa 62

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Facility-Based and Community-Based Non-Work Per 100,000

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1. Rhode Island 3732. Vermont 2863. New York 2284. Nebraska 2235. Colorado 2146. District of Columbia 2087. Alaska 1978. Wisconsin 1879. Oregon 18610. Indiana 18125. Ohio 102

Total Served in Day Services Per 100,000

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1. Vermont 4412. New York 3553. Iowa 3134. South Dakota 2935. Rhode Island 2886. Ohio 2847. Oregon 2798. District of Columbia 2749. Minnesota 26310.Nebraska 261

Day Services Per 100,000

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1. Ottawa 512. Van Wert 463. Henry 464. Putnam 425. Wyandot 416. Sandusky 417. Allen 408. Paulding 409. Richland 4010. Clark 4011. Seneca 3812. Carroll 3813. Belmont 3714. Hocking 3715. Perry 3716. Pike 3717. Lucas 3718. Darke 3619. Mercer 3620. Guernsey 35

Facility-Based Work Per 100,000

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1. Van Wert 372. Ottawa 363. Vinton 344. Pike 335. Clark 316. Guernsey 307. Carroll 308. Paulding 309. Putnam 3010. Monroe 2811. Wayne 2712. Sandusky 2713. Wyandot 2614. Seneca 2615. Lawrence 2516. Richland 2417. Morgan 2318. Perry 2219. Meigs 2220. Columbiana 22

Integrated Employment Per 100,000

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1. Henry 202. Mercer 173. Clinton 174. Union 165. Allen 146. Wood 147. Fayette 118. Washington 119. Lorain 1110. Morgan 1111. Athens 1112. Medina 1013. Knox 1014. Sandusky 915. Stark 916. Hancock 917. Logan 818. Belmont 819. Lucas 820. Summit 8

Nationally the emphasis is on integrated employment and a de-

emphasis on sheltered workshops. This has created a series of trends,

including employment first policies like Ohio initiated a year ago. This was a key initiative of the current chair of

the National Governor’s Conference.

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National Trends• Performance based rates• A few states are totally out of the sheltered

workshop business• A number of states have closed the front door on

sheltered workshop admissions• Virtually every state is looking at realigning their

funding away from sheltered workshops• Increase effort to eliminate the subminimum wage

exemption• Working age adult policy (can only go into adult day

after 9 months in Integrated Employment)29

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DODD issued its White Paper on ICF/IID’s and its Employment First Policy

as a result of these Olmstead concerns.

www.dodd.ohio.gov

As a result of the recently passed budget:•Money and language changes will continue to support employment efforts.•ICF language and money will support downsizing and conversions. Providers have committed to 1200 beds being converted or downsized over the next 5 years.•Downsizing of developmental centers will continue at 90 per year.

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Language Changes in the Budget

Language Provisions for Employment Rebalancing: Employment First

– Make changes to improve data collection– Make permanent the Governor’s Employment

First Taskforce– Create a presumption that all individuals with

disabilities can work – Ask local county boards to create their own

employment first policies– Create a new employment first line item

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Employment First Line Item ($3 million a year)1. Put up a data collection system2. Fund seven pilot local teams3. Provide statewide training in supported

employment4. Implement with Opportunities for Ohioans with

Disabilities (RSC) a program to fund job placement for 1,500 working age adults a year statewide. (Hamilton County is slated for approximately 120 slots per year)

Goal: Move 5.5% of individuals served in segregated settings to integrated employment per year.

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Our efforts to support downsizing, conversion of

ICF to Waiver, and Employment are based on more than Olmstead and

the fear of litigation.

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The transition from ICF’s to Waivers and from Sheltered Workshops to Integrated Employment

is based on some fundamental principles.

1.Choice: part of being human is the right to make choices. The more choices we take away from people the more we dehumanize them. Think prisons, dictatorships, communism, slavery and segregation.

PRINCIPLES – CHOICE continued

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In this context Olmstead and the “American’s with Disabilities” Act are at their core civil rights legislation. Their aim is to put choice and control in the hands of individuals and their guardians, not the provider.•In the ICF program the provider controls many choices, including day services and most important, the funding for the bed.

•In the Waiver program this control is transferred from provider to the individual or guardian. They can take their money and leave.

PRINCIPLES - Segregation

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2. Segregation: ICF’s and sheltered workshops are often larger (Ohio has 3,400 people living in facilities larger than 16 beds) segregated campus like settings. Segregation sends a dehumanizing message “they are not like us”, and either “we need to be protected from them” or “they need to be protected from us” or “they are so unlike us they can not live like us.”

3. Money: provides the opportunity for real choice, self-esteem and freedom.

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PRINCIPLES - Money

These principles of segregation and choice create National pressure and National trends which question the long term viability of the ICF program and sheltered workshops and the willingness of the Federal Government to continue funding these program.

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