Community Integration 15 Years After the Supreme Court’s Olmstead Decision

1. Community Integration 15 Years After the Supreme Court’s Olmstead Decision Presentation to the Disability Rights Consortium April 23, 2014 Barry Taylor & Karen Ward Equip for Equality Benjamin Wolf ACLU of Illinois

2. ADA and Community Integration When Congress passed ADA it found: • Segregation of people with disabilities was pervasive problem in US • Discrimination included people in institutions • Segregation perpetuates unjustified assumptions that institutionalized persons are incapable or unworthy of participation in community life • Institutionalization severely diminishes everyday activities like family relations, social contacts, work, educational advancement, and cultural enrichment

3. Department of Justice - ADA Regulations • DOJ: oversees Title II of ADA – covers state and local government programs and services • Integration Mandate: State and local governments must provide their services to people with disabilities in the most integrated setting appropriate to their needs • Most Integrated Setting: Setting that enables people with disabilities to interact with non-disabled persons to the fullest extent possible.

4. Olmstead – Case Background Olmstead v. L.C. 527 U.S. 581 (1999) • Two women with mental illness and DD institutionalized in state-operated hospital in Georgia • Both deemed appropriate for community placement, but remained institutionalized • Placement not provided because of insufficient community resources • Sued under ADA’s integration mandate • Supreme Court: Unjustified institutionalization is discrimination under the ADA.

5. Factors Set forth by Supreme Court in Olmstead • Community integration requirements: • Treatment officials find community is appropriate • Person does not oppose placement in the community • Placement can be reasonably accommodated taking into account State resources & needs of other pwds • State can meet its ADA obligations if it has a: • comprehensive, effectively working plan for placing people with disabilities in less restrictive settings; • waiting list that moves at a reasonable pace not controlled by the State’s efforts to keep its institutions fully populated.

6. Comprehensive Effectively Working Plan Frederick L. v. Dep't of Pub. Welfare of Pa., 422 F.3d 151 (3rd Cir. 2005) • Class action on behalf of residents of a state psychiatric hospital. • Plaintiffs: State does not have an Olmstead plan and failed to provide “concrete, measurable benchmarks and a reasonable timeline to ascertain when, if ever, residents will be discharged to appropriate community services.” • State: Just have to demonstrate “a commitment to take all reasonable steps to continue past progress”

7. Comprehensive Effectively Working Plan • Court: State’s generalized steps toward more community services insufficient and do not constitute an Olmstead plan • Olmstead plan must specify: • the time-frame/target date for resident discharge; • the approximate number of residents to be discharged each time period; • the eligibility for discharge; and • a general description of the collaboration required between the local authorities and the housing, transportation, care, and education agencies to effectuate integration into the community.

8. Comprehensive Effectively Working Plan • Frederick L.has been cited favorably by courts across the country, including in Illinois: • Disability Advocates Inc. v. Patterson,653 F.Supp.2d 184 (E.D.N.Y. 2009) • Crabtree v. Goetz, 2008 WL 5330506 (M.D. Tenn. Dec. 18, 2009) • Williams v. Quinn, 2014 WL 184948 (N.D. Ill. Jan. 10, 2014)

9. Fundamental Alteration Defense • DOJ Regulation: “A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.”28 CFR § 35.130(b)(7) (1998).

10. Fundamental Alteration Defense PA P&A v. PA Dep't of Public Welfare,402 F. 3d 374 (3d Cir. 2005) • Class action on behalf people living in a nursing facility • State: Funding shortages meant that it would be a fundamental alteration to provide the requested community services. • 3rd Circuit: Budgetary constraints alone do not satisfy the fundamental alteration defense. Demonstrating a “commitment to action” to comply with the ADA is a prerequisite to establishing a fundamental alteration defense. Only when this is demonstrated do budgetary issues even become a factor. 

11. Fundamental Alteration Defense Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175 (10th Cir. 2003) • State: Fundamental alteration if required to alter policy that could lead to institutionalization – citing budgetary constraints. • 10th Circuit: Demonstrating a policy is “reasonable” in light of the State’s fiscal crisis is not sufficient for providing the fundamental alteration defense. • "If every alteration in a program or service that required the outlay of funds were tantamount to a fundamental alteration, the ADA's integration mandate would be hollow indeed."

12. Fundamental Alteration Defense Arc of Washington v. Braddock, 427 F.3d 615 (9th Cir. 2005) • Suit alleged insufficient community services – sought order to require State to apply for increase in Home and Community Based Waiver Program beyond current cap • State: Already significantly reduced institution population, implemented an “Olmstead” plan, increased cap previously, and significantly expanded budget for community services. To require more would be a fundamental alteration. • 9th Circuit: Forcing the state to apply for an increase in its Medicaid waiver program cap constitutes a fundamental alteration, and is not required by the ADA.

13. Fundamental Alteration – Leading Illinois Case Radaszewski v. Garner, 383 F.3d 599 (7th Cir. 2004) • State unwilling to continue to provide same level of in-home nursing services when people turned 21. • State: fundamental alteration to provide the services • 7th Circuit rejected the State’s position • State already provided this service, just not at level requested • Cheaper for the State to serve plaintiff in his home rather than in a nursing home – undercut financial argument • Decision recently re-affirmed in Hampe v. Hamos, 917 F.Supp. 2d 805 (N.D. Ill. 2013)

14. Private Facilities • Although Olmstead involved state-operated institution, courts have applied the case to privately owned facilities that receive state funding • Disability Advocates Inc. v. Patterson, 653 F.Supp.2d 184 (E.D.N.Y. 2009) – Adult Homes for people with MI • Ligas v. Hamos, 2006 WL 644474 (N.D. Ill. Mar. 7, 2006) – Intermediate Care Facilities for people with DD • Williams v. Quinn, 2006 WL 3332844 (7th Cir. Nov. 13, 2006) – Institutions for Mental Diseases (IMDs) • Colbert v. Quinn, 2008 WL 4442597 (N.D. Ill. Sept. 29, 2008) – Traditional nursing homes

15. At Risk of Institutionalization • Courts have held that Olmstead decision includes people who are “at risk” of institutionalization. • Fisher v. Oklahoma Health Care Auth.,335 F.3d 1175 (10th Cir. 2003), • State imposed five prescription drug cap for people in the community – no such cap for nursing home residents • Court: Violation of the ADA's integration mandate – puts people at risk of institutionalization in nursing home • Olmstead not limited to people in institutions. Persons "who, by reason of a change in state policy, stand imperiled with segregation," may challenge that policy under the integration mandate.

16. At Risk of Institutionalization • Illinois courts agreethatOlmstead extends to people atrisk of institutionalization • Bruggeman ex rel. Bruggeman v. Blagojevich, 324 F.3d 906 (7th Cir. 2003),adults with developmental disabilities waiting for community services at home are covered by Olmstead decision. • Radaszewski v. Garner, 383 F.3d 599 (7th Cir. 2004), plaintiff at risk of institutionalization if state did not continue to provide in-home nursing services received as a child. • Ligas v. Maram, 2006 WL 644474 (N.D. Ill. Mar. 7, 2006), class certification included people who are at risk of institutionalization if not provided services.

17. Children and Olmstead • Although Olmstead involved adults with disabilities, cases are now being brought on behalf of kids • A.R. v. Dudek, 1:12-cv-60460 (S.D. Fla. 2012) andU.S. v. Florida , 1:13-cv-61576 (S.D. Fla. 2013) • Children with disabilities unnecessarily segregated in nursing facilities instead of being served in their family homes or other community-based settings. • State's policies place other children with significant medical needs in the community at serious risk of institutionalization in nursing facilities.  • Case brought under ADA and Medicaid.

18. Children and Olmstead T.R. v. Quigley, 2:09-cv-01677-TSZ (W.D. WA 2013) • State of Washington sued for failing to provide adequate home and community-based mental health services for children. Medicaid and ADA claims.  • Suit brought on behalf of kids currently institutionalized and kids at risk of institutionalization if they do not receive the mental health services they need. • On 12/19/13, court approved an agreement which would significantly expand community mental health services for kids in Washington. http://www.disabilityrightswa.org/settlement-statewide-class-action-approved-court

19. Children and Olmstead in Illinois N.B. v. Hamos, 11:06866 (N.D. Ill.) • Nine children with mental illness sued the Director of the Illinois Department of Healthcare and Family Services for failing to provide adequate home and community-based mental health services. Case alleges violation of Medicaid, ADA and Rehab Act. • ADA Claim - Children at risk of institutionalization if they do not receive the mental health services they need. • On 2/13/14, court certified case as a class action - 2014 WL 562637

20. Children Becoming Adults • Illinois has a program that provides in-home nursing services to kids with disabilities called the Medically Fragile Technology Dependent (MFTD) waiver. • However, when kids turn 21, they “age out” of this program. Under the adult program, their services are dramatically reduced. • As a result of this reduction in services, people “at risk” of institutionalization upon turning 21.

21. Children Becoming Adults • Individual Cases: Numerous cases secured relief for individuals at risk of institutionalization, but no change in policy: • Radaszewski v. Garner, 383 F.3d 599 (7th Cir. 2004) • Grooms v. Maram,563 F.Supp.2d 840 (N.D. Ill. 2008) • Class Action - Hampe v. Hamos, 10 C 2031 (N.D. Ill.) • Brought on behalf of all people aging out of Illinois’ MFTD waiver - at risk of institutionalization • Agreement reached that a person’s medical services will be based on medical necessity, not chronological age. http://www.farley1.com/hampe-consent.html

22. Budget Cuts and Olmstead • Olmstead has also been applied to cases in which State is proposing to reduce or eliminate community services placing people at risk of institutionalization • Crabtree v. Goetz, 2008 WL 5330506 (M.D. Tenn. Dec. 19, 2008) • adults with disabilities receiving in-home nursing care at risk of institutionalization when Tennessee proposed significantly cutting funding for home health care services. • Preliminary injunction granted to prevent implementation of cuts while litigation is pending.

23. Budget Cuts and Olmstead V.L. v. Wagner, 2009 WL 3486708 (N.D. Cal. Oct. 23, 2009) • California proposed reducing or terminating in-home support services for elderly and people with disabilities. • Plaintiffs filed suit to prevent service cuts claiming violation of ADA because proposed cuts would place plaintiffs at risk of institutionalization. • Court: Budget cuts could violate the ADA’s integration mandate. Accordingly, the court issued a preliminary injunction, which prevents budget cuts from taking place while litigation is pending.

24. Budget Cuts and Olmstead Pashby v. Cansler, 2011 WL 6130819 (E.D.N.C. Dec. 8, 2011), affirmed, 709 F.3d 307 (4th Cir. 2013) • Adults with disabilities challenged a new state Rule that would terminate coverage for in-home services. • Plaintiffs filed suit under the ADA to prevent the Rule from being implemented under a ADA. Specifically, the plaintiffs are claiming that the Rule would unjustifiably put them at risk of institutionalization. • The court granted motion for a preliminary injunction that prevents new Rule from being implemented while the litigation is pending. Injunction affirmed on appeal.

25. Employment and Olmstead Lane v. Kitzhaber, 841 F. Supp. 2d 1199 (D. Ore. 2012) • Suit filed by eight individuals with ID/DD who qualify for or receive employment services from State. Allegations: • Plaintiffs are able and would prefer to work in an integrated employment setting. • Plaintiffs are segregated in sheltered workshops and denied contact with people without disabilities. • Defendants filed motion to dismiss. • Court granted motion to dismiss, but gave plaintiffs opportunity to amend, and made various conclusions in its order.

26. Employment and Olmstead Lane v. Kitzhaber (cont.) • Court: Title II’s Integration Mandate Applies to the Provision of Employment-Related Services • Relied on DOJ’s guidance that an Olmstead plan includes people in sheltered workshops or segregated day programs. • Court: Granted motion to dismiss so that Plaintiffs could clarify allegations that State is violating the ADA by denying employment services to plaintiffs for which they are eligible with the result of segregating them in sheltered workshops • Amended complaint: Plaintiffs filed on 5/29/12; • Class certification granted. Lane v. Kitzhaber, 283 F.R.D. 587 (D. Ore. 2012).

27. Employment and Olmstead U.S. v. Rhode Island and City of Providence 1:13-cv-00442 (D.R.I. 2013) • DOJ investigation: State and City unnecessarily segregated approximately 200 people with disabilities in 2 sheltered workshop programs • State/City entered into a court-enforceable interim settlement agreement– DOJ will continue its state-wide investigation • Goal: Achieve integration for individuals who can and want to work but who have remained unnecessarily in workshops Complaint. Agreement, Press Release, Fact Sheets: www.ada.gov/olmstead/olmstead_cases_list2.htm#ri

28. Employment and Olmstead U.S. v. Rhode Island – 1:14-cv-00175 – (D.R.I. 2014) • DOJ entered into agreement with RI as state’s system violates the ADA by over-relying on segregated settings, including sheltered workshops and facility-based day programs, to the exclusion of integrated alternatives. • Under the agreement, RI will provide supported employment placements to approximately 2,000 individuals, including • at least 700 people currently in sheltered workshops, • at least 950 people currently in facility-based non-work programs, and • approximately 300-350 students leaving high school. 

29. Employment and Olmstead U.S. v. Rhode Island – 1:14-cv-00175 – (D.R.I. 2014) • Agreement Provides: • sufficient services to support normative 40 hour work week, • expectation that individuals will work, on average, in a supported employment job at competitive wages for at least 20 hours per week.  • State will provide transition services to approximately 1,250 youth between 14 and 21 intended to lead to integrated employment outcomes after secondary school. To View Letter of Finding, Complaint, Agreement, Order, Press Release and Fact Sheet Go To: http://www.ada.gov/olmstead/olmstead_cases_list2.htm#ri-state

30. “Reverse” Olmstead • Some have tried to use the Olmstead decision to prevent the closure of institutions • They argue that the following dicta in Olmstead supports their position: • “nothing in the ADA or its implementing regulations condones” forcing disabled persons into community settings when they are “unable to handle or benefit” from them, and • there is no “federal requirement that community-based treatment be imposed on patients who do not desire it.” See Olmstead  527 U.S. at 601–02, 604.

31. “Reverse” Olmstead - Background • Early court decisions rejected using Olmstead to prevent closure of institutions • Richard S. v. Department of Developmental Services, 2000 WL 35944246 *3 (C.D. Cal. March 2000) - there is no basis [in Olmstead ] for saying that a premature discharge into the community is ADA discrimination based on disability.” • Richard C. v. Houstoun, 196 F.R.D. 288, 292 (W.D. Pa. 1999) - “it does not logically follow [from Olmstead ] that institutionalization is required if any of the three Olmstead criteria is not met”

32. “Reverse” Olmstead – Recent Case Sciarillo v. Christie, 2013 WL 6586569 (D.N.J. Dec. 13, 2013) • Case filed by people with disabilities through their guardians seeking to prevent closure of two state developmental centers. • Argument: Closure of facilities and involuntary transfer to another institution violates ADA and inconsistent with Olmstead. • Court: “Plaintiffs’ interpretation of Olmstead is untenable.” Relocating residents to another institution when their current facility is closed is not discrimination based on disability.

33. “Reverse” Olmstead – Recent Case in Illinois IL League of Advocates for the Developmentally Disabled v. Quinn, 2013 WL 3168758 (N.D. Ill. 6/20/2013) • Suit filed on behalf of people with developmental disabilities in state-operated DD institutions who do not want to move into the community. Suit was filed after Governor announced plans to close two of the state institutions • Allegations included claim that closure would violate the ADA and would be contrary to the Olmstead decision.

34. “Reverse” Olmstead – Recent Case in Illinois ILADD v. Quinn(cont.) • Court: • Dismisses Olmstead claim • “this is not an Olmstead case. Plaintiffs do not claim they have been or will be deprived of placement in a community living environment—quite the contrary. They oppose such placement and, thus, do not fall within Olmstead' s purview. Unjustified isolation constitutes discrimination under the ADA, but—based on our close reading of Olmstead and the few relevant authorities—it does not follow from Olmstead that the converse is true.”

35. “Reverse” Olmstead – Recent Case in Illinois ILADD v. Quinn (cont) • Court Open to Possible Non-Olmstead Title II Claims: Even though the judge found that Olmstead not applicable in this case, he ruled that a Title II claim under the ADA may be established by evidence that: (1) the defendant intentionally acted on the basis of disability, (2) the defendant refused to provide a reasonable modification, or (3) the defendant's rule disproportionally impacts disabled people. • Parties have briefed this issue as part of a motion for preliminary injunction – no decision yet by the judge.

36. DOJ and Olmstead • Previous administration brought no affirmative community integration litigation after Olmstead decision • Current administration has been very pro-active on bringing Olmstead cases and filing Statements of Interest in support of others’ Olmstead cases • www.ada.gov/olmstead/olmstead_enforcement.htmlists the 50 Olmstead cases in which DOJ is involved. • DOJ has also issued a Statement on Olmstead that has been cited favorably by courts and can be very helpful to advocates http://www.ada.gov/olmstead/q&a_olmstead.htm

37. What Led to Filing Community Integration Cases in Illinois • ADA’s “Integration Mandate” and Supreme Court’s decision in Olmstead • Illinois’ over-reliance upon institutional settings • Various post-Olmstead efforts by State did not result in meaningful change • No response from Governor to letter sent by advocates • EFE, ACLU of IL and Access Living joined to bring three Olmstead class actions

38. Ligas v. Hamos Case Background • Suit filed in 2005 by 9 individuals with DD • Nearly 6000 people living in large private ICFDDs (9 or more) and thousands more living at home “at risk of institutionalization” • Suit did not cover DD State-Ops or kids • Suit brought by Access Living, ACLU, Equip for Equality and Dentons (pro bono law firm) • Certified as Class Action: Class included both people in institutions and people living at home waiting for services. 2006 WL 644474 (N.D. Ill. Mar. 7, 2006)

39. Ligas Case Background (cont.) • Agreement reached with State, but class de-certified and agreement rejected by court based on concerns raised by guardians who wanted their family members to stay in the institutions. • After extensive negotiations, the Plaintiffs, the State, and the Intervenors (those opposed to the original agreement) reached a new agreement that all could support. • Judge certified new class and granted approval of new agreement in June 2011.

40. Terms of Ligas Decree • Over 6 year period, all ICFDD residents who make a record of wanting community services will move into the community. • All ICF-DD residents happy with their current placement are not in the class and would not be required to move. • Additional 3,000 people living at home waiting for services will receive community services • After 6 years, State must develop waiting list that moves at reasonable pace.

41. Current Status of Ligasdecree • Independent Monitor appointed – Tony Records • Over 2000 class members have received community based services • Current concerns about size of placement, employment options, placements from involuntary closures, and challenges to OSG Complaint, Consent Decree, Implementation Plans, Monitor Reports and Fact Sheet can be found at: http://www.equipforequality.org/learn/rights-information-by-topic-area/resources-community-integration/

42. Williams v. Quinn - case background • Suit on behalf of people with mental illness living in IMDs (Institutions for Mental Diseases) • Approximately 4,500 people resided in IMDs statewide • Case brought by ACLU, Access Living, Bazelon Center, Equip for Equality and Kirkland & Ellis (pro bono law firm) • Certified as a class action in 2006 - 2006 WL 3332844 (7th Cir. Nov. 13, 2006)

43. Williams v. Quinn – Consent Decree Consent Decree was approved on 9/29/10 Over 5 year period, all IMD residents not opposing community services shall be placed in the most integrated community-based setting Permanent Supportive Housing will be considered most integrated setting for the vast majority of class members Illinois will get new federal money to support community services 43

44. Current Status of Williams decree • Independent Monitor appointed – Dennis Jones • 882 class members transferred to the community through 3/31/14 • Challenge to implementation of Consent Decree by IMD owners rejected by court - 2014 WL 184948 (N.D. Ill. Jan. 10, 2014) Complaint, Consent Decree, Implementation Plans, Monitor Reports and Fact Sheet can be found at: http://www.equipforequality.org/learn/rights-information-by-topic-area/resources-community-integration/

45. Colbert v. QuinnCase Background • Community integration litigation on behalf of people with disabilities living in nursing homes • Limited to Cook County • Certified as a class action in 2008 - 2008 WL 4442597 (N.D. Ill. Sept. 29, 2008) • Over 16,000 class members – class comprised of people with physical disabilities and mental illness • Attorneys representing class: ACLU, Dentons (pro bono law firm) and Equip for Equality • Consent Decree Approved – 12/11/11 • Independent Monitor Appointed – Dennis Jones

46. Current Status of Colbert Decree • 300 class members were to be moved to a community based setting in the first year • DHFS was designated lead agency for implementation - heavy reliance upon managed care • State only placed 80 people after the first year – Monitor found State out of compliance • State re-designated lead agency to Dept. on Aging – new Implementation Plan to be filed 7/1/14 Complaint, Consent Decree, Implementation Plan, Monitor Report and Fact Sheet can be found at: http://www.equipforequality.org/learn/rights-information-by-topic-area/resources-community-integration/

47. Community Integration 15 Years After the Supreme Court’s Olmstead Decision QUESTIONS?