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Olmstead v. L.C.: Federal and State Responses

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Title: Olmstead v. L.C.: Federal and State Responses


1
Olmstead v. L.C. Federal and State Responses
  • By Jenifer Urff, JD
  • Advocates for Human Potential, Inc.
  • Virginia Community Integration Implementation
    Team
  • September 24, 2004

2
A Brief History of Olmstead v. L.C.
  • Title II of the Americans with Disabilities Act
    (ADA)
  • …no qualified individual with a disability
    shall, by reason of his disability, be excluded
    from participation in, or be denied benefits of,
    the services, programs, or activities of a public
    entity, or be subjected to discrimination by any
    such entity.

3
A Brief History of Olmstead v. L.C.
  • ADA regulations
  • 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. … A public entity shall administer
    services, programs, and activities in the most
    integrated setting appropriate to the needs of
    qualified individuals with disabilities.
    (emphasis mine)
  • 28 C.F.R. 35.130(b)(7), (d)-(e)(1)

4
A Brief History of Olmstead v. L.C.
  • Georgia lawsuit involving two women with mental
    illness and developmental disabilities
  • Issue Does medically unnecessary segregation of
    individuals with mental disabilities in
    institutions constitute discrimination under the
    ADA?
  • June 22, 1999 U.S. Supreme Court Decision
    Answer is a qualified yes

5
A Brief History of Olmstead v. L.C.
  • U.S. Supreme Court
  • Community placements are required when
  • The States treatment professionals have
    determined that community placement is
    appropriate
  • The transfer from institutional care to a less
    restrictive setting is not opposed by the
    affected individual and
  • The placement can be reasonably accommodated,
    taking into account the resources available to
    the State and the needs of others with mental
    disabilities. (fundamental alteration defense)

6
A Brief History of Olmstead v. L.C.
  • U.S. Supreme Court
  • 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 not
    controlled by the States endeavors to keep its
    institutions fully populated, the
    reasonable-modifications standard would be met.

7
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8
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9
The Legacy of Olmstead Legal Context
  • Post-Olmstead litigation
  • Half of all federal cases are filed by Protection
    and Advocacy (PA) agencies
  • Most litigation focused on people with
    developmental disabilities
  • Most integrated setting issues
  • Nursing facilities
  • Adult care homes (New York)
  • At risk of institutionalization (Hawaii, HHS)
  • Person-centered discharges to ensure successful
    community integration (Michigan)
  • State Medicaid policies
  • ADA cases often combined with Medicaid claims
    (esp. reasonable promptness requirement)

10
Post-Olmstead Litigation
  • A powerful theme that emerges from post-Olmstead
    cases is that courts desire to encourage policy
    change, not unnecessarily insert themselves in
    the change process.
  • (Rosenbaum and Teitelbaum, 2004)

11
Post-Olmstead Litigation
  • Williams v. Wasserman, 164 F. Supp.2d 591 (D.Md.
    2001)
  • States response to the goal of community
    integration should be active and visible
    involvement in program restructuring, even if
    reforms take many years.
  • Rather than exposing the state to further
    liability if such reforms are not achieved,
    evidence of active engagement and slow progress
    toward fundamental alterations signals the type
    of evolutionary change that the Olmstead majority
    arguably sought to accomplish. (Rosenbaum and
    Teitelbaum, 2004)

12
Post-Olmstead Litigation Legal Resources
  • Gary Smith, Human Services Research Institute
    (HSRI) http//www.hsri.org/index.asp?idnews
  • National Association of Protection and Advocacy
    Systems http//www.napas.org

13
The Legacy of Olmstead Policy Context
  • Most States already engaged in de-institutionaliza
    tion
  • State hospitals beds declined from nearly 700,000
    in late 1950s to about 65,000
  • Between 1990 and 2003, Medicaid HCBS waiver
    expenditures increased more than 10-fold (18.6
    billion)
  • Percentage of Medicaid long-term care services
    devoted to home and community-based services
    increased from 10 percent in 1990 to 33 percent
    in 2003)
  • Among people with developmental disabilities,
    402,000 HCBS waiver participants and 107,000
    ICF/MR residents

14
Federal Policy Response
  • Dear State Medicaid Director Letters (5)
  • Encouraged states to develop plans
  • Encouraged consumer participation in plan
    development
  • Encouraged quality assurance, improvement, sound
    management
  • Complaint-driven enforcement by HHS Office of
    Civil Rights
  • OCR played coordinating role in State plan
    development

15
Federal Policy Response
  • Real Choice Systems Change Grants
  • Established by Congress in 2000
  • 158 million in grants to states and territories
    to create infrastructure and service options for
    long-term community integration
  • In many States, drive Olmstead planning

16
Federal Policy Response
  • New Freedom Initiative
  • Executive Order (June 18, 2001) Requires all
    federal agency to comply fully with the
    requirements of the Olmstead decision
  • Money Follows the Person Medicaid
    demonstration to support individuals moving from
    institutions into the community
  • NFI Commission on Mental Health Final Report
    (July, 2003) mental health system in shambles

17
State Policy Responses
  • Comprehensive, effectively working plan
  • 29 States have issued Olmstead plans or reports
  • 4 States are working on plans
  • Several other States have Olmstead task forces
    but do not intend to develop a plan or report
  • 10 States are developing follow-up or progress
    reports
  • National Conference of State Legislatures (2004)

18
State Olmstead Planning
  • Common themes
  • Emphasize incremental development of additional
    community-based service capacity
  • Adequate only if it offers consumers a range of
    options for individualized services
  • Fiscal pressures
  • Multi-year plans

19
State Olmstead Planning
  • Process
  • Broad stakeholder involvement
  • Interagency participation
  • Consumer-driven (Virginia)
  • Priorities/Recommendations
  • Revising assessment tools
  • Foster cross-disability assessment approaches
  • Identify candidates for community placement
  • Quality assurance
  • Integrated data collection and analysis

20
State Olmstead Planning
  • Priorities/Recommendations (cont.)
  • Cost-neutral or low-cost activities
  • Consumer self-direction (both in existing
    Medicaid waivers and in new waivers)
  • Money follows the person initiatives
  • Consumer information and outreach

21
State Olmstead Planning
  • Priority populations/issues
  • Developmental disabilities (21 States)
  • Mental health (18 States)
  • Aging
  • Expanding Medicaid waivers (adding slots)
  • Demonstration to give frail elderly the choice
    between nursing home care and home- and
    community-based care without waiting for a waiver
    slot (Vermont)
  • Work force
  • Direct care worker referral registry (Washington)
  • Housing

22
State Olmstead Planning
  • Barriers
  • State budget shortfalls/declining State revenues
  • Some reports included only no-cost or low-cost
    recommendations (Indiana)
  • Rising Medicaid costs
  • Institutional bias in Federal programs
  • Lack of interagency collaboration
  • Stigma
  • Housing

23
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24
Key Community Integration Measures
  • Kaiser Family Foundation review of all State
    Olmstead plans
  • Outcomes-based measures
  • Transitioning institutional residents to
    community care
  • Elimination of waiting lists
  • Institutional diversion of persons at risk in the
    community
  • Intermediate measures
  • Building system and provider capacity
  • Investment of resources
  • Developing the appropriate tools to reach
    individuals eligible for community placements

25
Selected Examples of State Olmstead Activities
  • Interaction with Real Choice Systems Change
    grants
  • New HCBS waiver proposals
  • Consumer self-direction
  • Consumer outreach and education
  • Consumer surveys
  • Feasibility studies
  • Nursing facility transition grants
  • Model community for individuals with
    disabilities (Connecticut)

26
Selected Examples of State Olmstead Activities
  • Reduce waiting lists (esp. for DD)
  • Develop Olmstead waiting lists (Illinois)
  • Anti-stigma/Olmstead awareness campaigns (North
    Dakota, Idaho)
  • Respond to litigation (Hawaii)
  • Nursing home transitions (Arkansas)
  • Medicaid HCBS waivers
  • Goal transitioning 5 percent of nursing home
    population
  • Web site development/cross-agency,
    cross-disability, one-stop point of entry

27
Selected Examples of State Olmstead Activities
  • Integrated data collection
  • Workforce issues
  • Exacerbated by hiring freezes and early-out
    incentives
  • Consumer self-direction to match labor to
    consumer demand
  • Legislative action to increase pay
  • Housing
  • Housing Summits (Iowa)
  • New community-based residential slots
  • Mental health/behavioral health commissions
    (Nevada)

28
Selected Examples of State Olmstead Activities
  • Most are not specifically labeled Olmstead
    activities
  • Behavioral Health Collaborative (New Mexico)
  • Interagency collaborations
  • MH and MR/DD (Ohio)
  • Departments of Mental Health and Aging re
    nursing home placements (Kansas)
  • Evidence-based practices
  • Behavioral health (Arizona)

29
Olmstead Policy Resources
  • The States Response to the Olmstead Decision A
    2003 Update by Wendy Fox-Grage, Barbara Coleman,
    and Donna Folkemer (NCSL 2003)
    www.ncsl.org/programs/health/forum/olmstead/2003/o
    lms2003report.htm
  • Olmstead at Five Assessing the Impact by Sara
    Rosenbaum and Joel Teitelbaum (Kaiser Family
    Foundation 2004) http//www.kff.org/medicaid/7105a
    .cfm

30
Have other staff members at your agency been
involved in Olmstead Initiative (EO 61)
activities?
31
Have you provided updates to your agency head on
the Teams activities?
32
Have any EO 61 activities been discussed at any
meetings of your agencys executive management
team?
33
Have your role or duties at your agency changed
in any way since EO 61?
34
Are people with disabilities and/or their
families considered a core constituency for your
agency?
35
Is addressing the needs of people with
disabilities and their families a part of your
agencys mission?
36
Virginia Including Consumer Perspectives
  • To what extent are the perspectives of people
    with disabilities and their families consulted in
    decision-making within your agency?
  • Groups determining policy, direction and
    oversight have members from affected people
    and/or families
  • Part of the public sometimes invited to
    participate
  • Public hearings/public comment on proposed rules
  • Advisory boards/policy councils that meet
    periodically
  • Frequently consulted
  • Unknown
  • Through advocacy organizations

37
Virginia Including Consumer Perspectives
  • To what extent are the perspectives of people
    with disabilities and their families consulted in
    decision-making within your agency?
  • Work groups/task forces/project teams
  • Direct staff involvement with consumers,
    families, and advocates
  • Direct client services that emphasize client
    participation and choice
  • Program evaluations
  • On-line Town Hall format to solicit input (not
    helpful)
  • Targeted work groups/focus groups

38
Including Consumer Perspectives What Works
  • Outreach Solicit input, dont just permit it
  • Avoid tokenism
  • Make participation less intimidating
  • People with disabilities are multi-dimensional
  • Support advocacy training
  • Provide background and briefings
  • Model integration hire staff with disabilities
  • Joint meeting with ADA Coordinators

39
Including Consumer Perspectives New Ideas
  • Periodic teleconferences
  • Steering committee of consumer/clients identifies
    topics, presenters
  • Creates a stakeholder community to support agency
    initiatives
  • Disability Impact Statement (DIS)
  • Modeled after environmental impact statements
  • What is the impact of this proposed
    regulation/policy on people with disabilities?

40
Including Consumer Perspectives New Ideas
  • Joint meetings with Olmstead Oversight Advisory
    Committee
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