PAS Center Webinar May 15, 2013

1. PAS Center WebinarMay 15, 2013 National Data on Olmstead Related Litigation

2. Olmstead – What the Supreme Court ruled in 19992 Key Concepts ‘Reasonable Accommodations’ Olmstead clarifies that ADA (Title II) requires any public body to administer programs to provide services in the most integrated setting appropriate for qualified individuals. Only required to make ‘reasonable accommodations’ to programs such as Medicaid No need for ‘fundamental alteration’ of program. Compliance might be demonstrated by ‘comprehensive, effectively working plans’ (Olmstead Plans or alternatives) to increase HCBS & reduce institutionalization

3. Olmstead – 2 Key Concepts Reasonable promptness Concerns waiting lists for Medicaid services Ensure that waiting lists for services move at a ‘reasonable pace’ Illegal for states to put people on waiting lists without 1st assessing their needs

4. Medicaid HCBS Waiver Waiting Lists by Target Group, 2003 - 2011 365,553 331,689 260,916 180,347 Ng & Harrington, 2012. Medicaid HCBS Program Data 92-09San Francisco, CA: UCSF

5. States with Largest Wait Lists for HCBS Waivers, 2011 (Total: 511,174)

6. Olmstead & Related Lawsuits • ‘Olmstead’ lawsuits primarily concern people who are institutionalized or at risk of institutionalization - case closed after Olmstead in 1999 and - cites a violation of ADA Title II. • ‘Related’ cases do not cite the ADA but may use another law (e.g., Medicaid law, the Rehabilitation Act) to raise issues about HCBS provision & unnecessary institutionalization

7. The Current Status of Lawsuits • Total number of Olmstead and Related cases is 178 as of April 2013. • California (17) and Pennsylvania (17) had the most cases • 89 ‘Olmstead’ lawsuits in 34 states & DC • 85 ‘Related’ lawsuits in 32 states & DC • 5 states with no reported cases Iowa, Idaho, North Dakota, South Dakota & Vermont • 60 cases yet to be decided or under appeal • 118 have been closed/no further appeal

8. Plaintiff Groups in Cases Closed Cases - 118 Open Cases - 60

9. “Win” Rate For Closed Cases

10. Certification & Outcome For Closed Cases Defendant/State 14 (25%) Plaintiff 16 (29%) Settled 48 (81%)

11. Ligas et al v. Hamos et al. Illinois 2011 Background State of Illinois Class action certification for persons in state-funded ICF-DD or who are at risk of entering such facilities Filed 2005 by 9 plaintiffs Sought HCBS from state but denied Outcome Settlement approved June 15, 2011 • State provides HCBS to those in ICF-DD who have gone on record requesting such services • HCBS also to extra 3,000 persons with I/DD living at home (at risk)

12. Capitol People First et al v. CA Dept of Developmental Services et al. California 2009 Background State of California Class action certification for persons in Development Centers (state hospitals for DD), Large Congregate Institutions (16+, eg. Skilled nursing facilities and private ICF/DDs) or who are at risk of entering such facilities Filed 2002 by 16 plaintiffs Seeks to compel state to provide HCBS information and options to institutionalized persons Outcome Settlement approved April 2009 • Extra funds for case workers • HCBS information for persons in institutions • Training for institutional staff • Funds to help move persons to smaller facilities • Affects 7,000 persons living in large institutions

13. Olmstead Plans • An Olmstead Plan or any written procedures to address Olmstead is seen as key element of compliance - But courts also want to see evidence of action by state • These plans are supposed to present a cohesive, state-wide approach to increasing HCBS • 3 strategies to address Olmstead compliance 1) Legislative action (policy & budgetary mechanisms for moving money around the system) 2) Market-based approaches (consumer information to enable choice & create demand for HCBS) 3) Fiscal & programmatic linkages (e.g. improving co-ordination between services & increasing HCBS capacity) • In 2011, 26 states had published Olmstead plans & 18 states had alternative responses to Olmstead - 44 states - Washington DC, Florida, Idaho, New Mexico, Rhode Island, South Dakota & Tennessee have none

14. Implementation of Olmstead Plans Barriers to Olmstead Plan implementations - Financial constraints on Medicaid - Lack of affordable & accessible housing - Labor shortage of home care workers - Political pressure & lobbying of institutional care facilities - Inadequate public awareness of community-based options Need for 1) Consumer involvement in the design, implementation, & monitoring of state Olmstead responses 2) Workforce development 3) Improved coordination among agencies

15. States Can Take Advantage of ACA Provisions • State balancing incentive payment (for states that spend less than 50% on HCBS) -- 6 States have approvals • Community First Choice Option (1915k) - Allows states to cover Personal Care for those with an institutional level up with incomes to 300% of SSI (6% increase in federal match) – CA Approved • HCBS State Plan Benefit (1915i) – convert waivers with eligibility to 300% of SSI without cost neutrality requirements - 8 States have approvals • Money Follows the Person - expansion to transition individuals out of NHs

16. Olmstead Cases & Plans • 60 active Olmstead lawsuits in 45 states & DC, mostly by I/DD, persons with mental illness & physically disabled • Settlement is most common, esp. if plaintiff gets class cert. Benefits thousands of consumers at once • Class cert gives higher chance of winning or settlement • Feds also strongly support Olmstead enforcement, esp in Obama admin though support briefs. • Anecdotal evidence – state DHS encourage lawsuits to force changes given financial situation • Most states have Olmstead plans or alternatives. Seen as 1st step towards compliance by court