NACDD: 25 Years of ADA & 15 Years of Olmstead. Sheila Foran

Department of JusticeDepartment of JusticeOlmstead Olmstead Enforcement: Enforcement: Integrated EmploymentIntegrated Employment

National Association of Councils on Developmental Disabilities

July 7, 2014

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 self-determination 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

• Ensure that people have opportunities for integration in all aspects of their lives – where they live and how they spend their days

• Engagement of a range of stakeholders – consumers, families, advocates, providers – is essential

Important Lessons (cont’d)

• Access to a range of quality community services, affordable, integrated housing, and opportunities for integrated day activities are critical to success of Olmstead efforts– Cross-agency collaboration with DOJ, HUD and

HHS regarding community services and housing – Cross-agency collaboration with DOJ, HHS, DOL,

and DoEd regarding employment and integrated day activities

Range of DOJ “Tools”• Investigations & findings letters leading to

system reform settlement agreements or litigation

• Intervention or statements of interest in private Olmstead litigation

• Olmstead Technical Assistance Guidance• Cross-agency Olmstead activities – with HHS,

HUD, DOL, DoEd, • Olmstead website (www.ada.gov/olmstead)

Legal Background

Title II of the ADATitle 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• US v. Virginia Settlement Agreement

– Agreement remedies finding that Virginia violated the ADA by overly relying on its state-operated ICFs for more than 1000 people and placing thousands more people at serious risk of institutionalization due to a lack of community-based services

– HCBS waivers for people transitioning out of state-operated ICFs, youth transitioning from nursing homes and large private ICFs, and people with “urgent needs” on the waitlist (4200 waivers)

– Family support program to help people on waitlists (1000 people) – Full range of community-based crisis services (crisis hotline, mobile crisis teams,

crisis stabilization programs) – Expanded case management– Develop and implement Employment First policy and expansion of supported

employment and integrated day opportunities– Integrated housing (including subsidies for independent living)– Expansive quality management system for community services

State-Operated Facilities (cont’d)

• Other Settlement Agreements:– 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.• 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 facilities

• ACT, crisis services, supported housing, supported employment

- US v. NH – people with MI in or at risk of entering state psychiatric hospital and state-run nursing facility for people with MI; settlement agreement filed December 19.

State to create and expand services over the next six years: new mobile crisis teams and crisis apartments; expand ACT services, providing state-wide coverage for at least 1,500 people; add hundreds of new supported housing units and work to create community alternatives for people with complex health care needs; and expand effective supported employment services for hundreds of people.

State-Operated Facilities (cont’d)• Litigation:

– US v. NH – case began in 2012 with contested litigation.

• Open Findings letters:– Mississippi Findings Letter – violations re adults

& children in public and private DD and psych. facilities and people on waitlists for community svs.

State-Operated Facilities (cont’d)

• Litigation About Institutional Closures– Families of people in state-operated institutions

slated for closure have filed lawsuits claiming the ADA and Olmstead create a right to remain in the institution and prevent its closure

– DOJ has filed Statements of Interests in these cases, arguing that the ADA’s integration mandate creates a right to integration, not segregation; courts have agreed

– States must ensure that individuals have alternatives that meet their needs

Private Facilities• Nursing homes

– Steward v. Perry (Texas)• Litigation regarding thousands of people with ID/DD

who are in private nursing homes, or at risk of entering them. Litigation involves the ADA and PASRR.

• Parties reached an interim agreement in August 2013 to address obligations over the upcoming biennium and are negotiating a comprehensive settlement. Provisions include:

– New PASRR screens for all people in nursing facilities; – Service Planning Teams and Service Coordinators for all adults

with ID/DD in nursing facilities or who are diverted from nursing facilities;

Private Facilities (cont’d)

– Steward v. Perry (continued)– Community supports:

» Medicaid HCBS waivers to transition people from NFs and to divert people (635 in current legislative biennium);

» Expansion of community-based medical, nursing, and nutritional management supports and services,

» Expansion of integrated day, employment, recreational and other community activities.

– Diversion efforts:» Identification of individuals with ID/DD at risk of entering

nursing facilities, » Education about community alternatives, and» Diversion Coordinators to identify and arrange community

services to prevent admission for such individuals.


– U.S. v. Florida• Litigation regarding hundreds of children with complex

medical needs unnecessarily in nursing homes and thousands more at-risk of entering nursing homes because a lack of community alternatives and cuts to in-home supports

– Also relief in VA agreement• Target population includes persons with ID/DD in nursing

facilities;• Prioritizes waiver slots for people under 22 in NFs;• Heightened review of any proposed transfers to NFs from

state-operated ICFs


• Adult care homes (large board and care homes for people with mental illness)– 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 – settlement providing 2,000+ supported housing units to eligible residents of 23 large, privately owned institutional settings

• ACT, crisis services, transition supports


• Private ICFs– Statement of Interest in private litigation– Also relief in VA agreement (similar as for nursing

homes) and findings in Miss.

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

Segregated Days – Lane v. Kitzhaber/U.S. v. Oregon:

• Court decision on motion to dismiss found that ADA and Olmstead applies to all government services, programs and activities, including employment. Rejected argument that only applies to residential services and programs.

– Settlements in VA, DE, NC and GA– Include an expansion of supported employment & integrated day activities as part of system wide relief.

U.S. v. Rhode Island - Landmark Settlement Agreement

• Relief for 3,250 individuals with intellectual and developmental disabilities.

• Opportunities for real employment in the community at competitive wages, and integrated day activities for non-work hours.

U.S. v. Rhode Island – DOJ Findings

• State of Rhode Island violated the ADA and Olmstead by failing to serve individuals with I/DD in the most integrated day activity service setting appropriate for their needs, and by placing transition-age youth at serious risk of segregation.


• 80 percent of the people with I/DD receiving state services, about 2,700 individuals, are placed in segregated sheltered workshops or facility-based day programs.

• Only about 12 percent, or approximately 385 individuals, participate in individualized, integrated employment.

• Investigation found that the state has over-relied on segregated service settings to the exclusion of integrated alternatives.

•


• Placement in segregated settings is frequently permanent: nearly half (46.2 percent) of the individuals in sheltered workshops have been in that setting for ten years or more, and over one-third (34.2 percent) have been there for fifteen years or more.

• Individuals with I/DD in sheltered workshops in Rhode Island reportedly earn an average of only about $2.21 per hour.


• According to state data, among youth with I/DD who transitioned out of Rhode Island secondary schools between 2010 and 2012, only about five percent transitioned into jobs in integrated settings, even though many more of these youth are able to work in integrated employment and are not opposed to doing so.

U.S. v. Rhode Island Consent Decree

• Transitions 2,000 people with intellectual and developmental disabilities now in sheltered workshops or facility-based day programs, or who have recently left high school, to real jobs in the community over 10 years.

• Provides 1,250 youth with access to high-quality transition services over 10 years.


Integrated Employment means:• Individualized, typical jobs in the community.• Earning at least minimum wage.• Working among peers without disabilities for

the maximum hours consistent with a person’s abilities and preferences.

• Average of at least 2O hours of employment per week across the target population.


• Requires Rhode Island Department of Education (RIDE) to adopt an employment first policy, making work in integrated employment settings a priority service option for youth.

• Youth in transition will receive integrated vocational and situational assessments, trial work experiences, and an array of other services to ensure that they have meaningful opportunities to work in the community after they exit school.


• All persons receiving supported employment placements will also be provided with integrated non-work services.

• Integrated day services allow persons with I/DD to engage in self-directed activities in the community (e.g., mainstream community-based recreational, social, educational, cultural, and athletic activities, including community volunteer activities and training activities).


Sustained Commitment to Funding• Over ten years.• Redirect, redistribute, and reallocate funds

currently used primarily to support segregated services to instead fund integrated alternatives.


Outreach, Education and Support:• Requires state to develop an outreach, in-reach and

education program explaining benefits of supported employment and addressing families’ concerns about participating in supported employment.

• To ensure informed choice, individuals with I/DD may remain in segregated programs if they request a variance after they have received a vocational assessment, a trial work experience, outreach information and benefits counseling.


• Requires state to create an “employment first” task force of local stakeholders, advocacy organizations, parent and business leadership networks, individuals with I/DD and family representatives.


Provider Capacity:• Requires state to establish a sheltered workshop

conversion institute to assist qualified providers to convert their employment programs to supported employment services.

• Requires state to establish a sheltered workshop conversion trust fund of $800,000 to assist with upfront start-up costs to providers to convert their services from primarily sheltered employment to primarily supported employment services.


• Requires state to contract with technical assistance providers to provide leadership, training and technical assistance to employment and day services providers and to state staff.

• Requires state to ensure reimbursement model for day activity services allowing reimbursement for costs such as transportation, employer negotiation and counseling clients by phone.


Interagency Collaboration:• The state will implement interagency

agreements among the Department of Behavioral Healthcare, Developmental Disabilities & Hospitals (BHDDH), the Office of Rehabilitation Services (ORS) and RIDE.

Segregated Days (cont’d)

• U.S. v. Rhode Island/City of Providence:– Found the state of Rhode Island and the City of

Providence violated the ADA by overly relying on sheltered workshops to the exclusion of more integrated alternatives.

• Vast majority of people in sheltered workshops could and want to be served in more integrated settings, like supported employment and integrated day settings.

• Students with ID/DD at risk of unnecessary segregation in sheltered workshops. In-school sheltered workshop served as pipeline to adult workshop; lack of transition services to prepare students for more integrated options (e.g., internships, part-time jobs, and work-based learning)


• U.S. v. Rhode Island/City of Providence: Interim Settlement Agreement– Provides relief to: (1) Individuals currently at

state’s largest sheltered workshop provider (TTP) or who have received services at TTP in the last year; (2) youth preparing to leave in-school sheltered workshop program (Birch) or who left Birch within the last two years; and (3) youth participating in the Birch program.


• U.S. v. Rhode Island/City of Providence: Interim Settlement AgreementUnder the Interim Agreement, the State and City committed to work together to:• Provide career development plans, vocational assessments, and

benefits counseling for all individuals at TTP and all youth leaving, or who recently left, Birch.

• Provide supported employment services and placements to all individuals at TTP and youth leaving, or who recently left, Birch;

• Provide access to integrated transition services to Birch students through a youth transition planning process beginning at age 14;

Segregated Days– Lane v. Kitzhaber/U.S. v. Oregon:

• DOJ issued findings letter that Oregon violates ADA by over-reliance on employment services in segregated settings (e.g., sheltered workshops)

– Found segregation in sheltered workshops of people who could and want to work in integrated settings

– Focus on people unnecessarily in sheltered workshops and people at risk (esp. transition age students)

– Seeks expansion of supported employment


– Lane v. Kitzhaber/U.S. v. Oregon (cont’d): • DOJ intervened in private litigation alleging that Oregon

administers the State’s employment, rehabilitation, vocational, and education service system such that people with disabilities are denied the benefits of the State’s vocational and employment services, programs, or activities in the most integrated setting.

– Includes people currently in sheltered workshops as well as “at risk” class of students with ID/DD whom Oregon fails to provide with meaningful choices and preparation for work in integrated settings.


– Lane v. Kitzhaber/U.S. v. Oregon (cont’d): • Factual allegations in the complaint:

– Over 52% of participants earn less than $3.00 per hour. Some earn only a few cents per hour.

– Individuals with ID/DD remain in sheltered workshops an average of 11-12 years. Some remain for as long as 30 years.

– 61% received services in segregated sheltered workshops, while only 16% received any services in individual supported employment.

CROSS-AGENCY COLLABORATION

REGARDING OLMSTEAD

DOJ-HHS

• HHS Technical Assistance to states implementing DOJ Olmstead settlement agreement

• Participated in planning HHS Olmstead Academies

• Input on HCBS Regulations and guidance documents regarding Medicaid funding opportunities for critical community services

DOJ-HUD

• HUD TA to states implementing DOJ settlement agreements

• HUD Olmstead Guidance (June 2013)– HUD-funded affordable housing programs are a critical

resource for Olmstead implementation– HUD is committed to ensuring that HUD-funded housing

gives choice, self-determination, and opportunities for people with disabilities to live and interact with people without disabilities

– Provides guidance on how to structure preferences related to state Olmstead implementation

OTHER CROSS-AGENCY WORK• Community Employment Working Group

– DOJ, HHS, SSA, DOL, DoEd, EEOC collaboration to improve employment outcomes for people with disabilities

• US Interagency Council on Homelessness– Identifying strategies to expand the impact of Olmstead

for persons experiencing homelessness– Place-based DOJ-USICH collaborations

• Department of Labor– ODEP initiatives to expand supported employment– Implementation of the Companionship regulations,

including Olmstead implications

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

http://www.ada.gov/olmstead

Contact Information

Sheila ForanSpecial Legal CounselDisability Rights Section [email protected]

mailto:[email protected]

Government & Nonprofit

NACDD: 25 Years of ADA & 15 Years of Olmstead. Sheila Foran