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CIL-NET Presents…CIL-NET Presents…

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Implementing and Enforcing Olmstead

A National Onsite TrainingOlmstead Developments in the Courts

May 11, 2011

Presenter:C. Talley Wells

Atlanta Legal Aid

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OlmsteadOlmstead Developments Developments

What we will cover:

• Main controversies from decision

• What has been happening in the courts on Olmstead across the country?

• Issues going forward

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Olmstead v. L.C. Olmstead v. L.C. (S.Ct. 1999)(S.Ct. 1999)

• 2 women (Lois and Elaine) at Georgia Regional Hospital over 30 times each.

• Most important civil rights court decision for people with disabilities

• Qualified Right to Live in Community

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Olmstead based on Olmstead based on Americans with Disabilities Act Americans with Disabilities Act (1990)(1990)

• Findings of Historical Discrimination and Segregation

• Most Integrated Setting Appropriate to Needs 

• Requires Reasonable Accommodation but not a Fundamental Alteration

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3 Prong Test 3 Prong Test OlmsteadOlmstead

1. When Treatment Professionals Determine that Community Placement is Appropriate.

2. When individual does not oppose move to community.

3. When placement is reasonable accommodation when balanced with the needs of others with similar disabilities.

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Fundamental Alteration DefenseFundamental Alteration Defense

“Sensibly construed, the fundamental-alteration [defense]. . . would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable . . .”

“If, for example, the State were to demonstrate that it had a

comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace ….

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Fundamental Alteration Fundamental Alteration Defense, cont’d.Defense, cont’d.

• Frederick I (3rd Cir. 2004) plan must be communicated in some manner and a “commitment to action in a manner for which [state] can be held accountable by the courts.”

• Frederick II (3rd Cir. 2005)

– A “vague assurance” not enough.– at a bare minimum should specify the time-

frame for discharge, # to be discharged, and general description of community coordination/services necessary.

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Fundamental Alteration Fundamental Alteration Defense, cont’d. 2Defense, cont’d. 2• Budgetary constraints alone do not create

a fundamental alteration defense. Pennsylvania P&A (3rd Cir. 2005)

Or put another way…• Bad economic times for a state alone do

not create a fundamental alteration defense. Fisher (10th Cir. 2003).

• Also... Burden of fundamental alteration on state. Benjamin (M.D.Pa. 2010).

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To Whom Does Olmstead Apply?To Whom Does Olmstead Apply?

• In Community, but at risk of institutionalization (don’t have to be in institution) Fisher (10th Cir. 2003)

• Individuals in Nursing Facilities

• Individuals in state funded large institution-like group homes DAI (S.D.N.Y. Sept. 2009) (currently on appeal)

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To Whom Does Olmstead Apply? To Whom Does Olmstead Apply? cont’d.cont’d.

• State may have obligation to assess individuals in institutions to see who is eligible for community supports. Messier (D. Conn. 2008).

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• Olmstead cases often involve Medicaid Waivers.

• If qualify for Waiver but not receiving it, does Olmstead automatically apply? Probably not.

Medicaid WaiversMedicaid Waivers

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• Medicaid Waivers almost never available for people with mental illness b/c Medicaid doesn’t pay for mental health institutions.

– This fact often causes disparity in community services/resources for people with mental illness.

– (side note) HUD Shelter Plus Care for homeless with mental illness is not allowed for homeless in psychiatric hospital for more than 30 days (but that may change to 90 days).

Medicaid Waivers, cont’d.Medicaid Waivers, cont’d.

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• Olmstead may require state to expand coverage of Medicaid Waiver.

– If state provides service in institution, state might have to provide same service in community whether or not current waiver exists. Grooms (N.D. Ill. 2008); Radaszewski (N.D. Ill. 2008).

– However, the existence of waiting lists has been found not to violate Olmstead. (Makin D. Hawaii 1999). But this is challengeable in many ways.

Medicaid Waivers, cont’d. 2Medicaid Waivers, cont’d. 2

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• State cannot reduce services in Medicaid Waivers in way that could increase institutionalization. Fisher (10th Cir. 2003).

Medicaid Waivers, cont’d. 3Medicaid Waivers, cont’d. 3

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• U.S. Department of Justice – Amici briefs– DOJ v. Georgia; DOJ in other states– Olmstead public priority of DOJ

• Office for Civil Rights, HHS– Georgia 2008 Settlement* Be careful -- Slow and Weak Enforcement, but

might improve????

Recent Increased Federal Recent Increased Federal InvolvementInvolvement

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• HUD, CMS, and White House Olmstead initiatives

• Money Follows the Person

• New Healthcare Reform

Recent Increased Federal Recent Increased Federal Involvement, cont’d.Involvement, cont’d.

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• Need to speed up. Going way too slow.

• What to do about long unmoving waiting lists for those at less risk of institutionalization? (i.e. adults living with parents to avoid institution)

• How to get more systemic/comprehensive change?

• How Olmstead applies outside of traditional modes?

Issues Going ForwardIssues Going Forward

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• Raise awareness of Olmstead -- policy makers, influencers, stakeholders, and people with disabilities.

• Take responsibility for envisioning community infrastructure needed and how to get there, including specifics of costs and mechanics.

• Be good stewards of resources.

• Litigate! Increase Influence! Change the World!

Our Our Olmstead Olmstead ResponsibilitieResponsibilitiess

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Talley WellsMental Health and Disability Rights

ProjectAtlanta Legal Aid Society, Inc.www.atlantalegalaid.orgctwells@atlantalegalaid.org404-377-0705 ext. 282

Thank YouThank You

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CIL-NET AttributionCIL-NET Attribution

Support for development of this training was provided by the U.S. Department of Education, Rehabilitation Services Administration under grant number H132B070002-10. No official endorsement of the Department of Education should be inferred. Permission is granted for duplication of any portion of this PowerPoint presentation, providing that the following credit is given to the project: Developed as part of the CIL-NET, a project of the IL NET, an ILRU/NCIL/APRIL National Training and Technical Assistance Program.