CIL-NET Presents…
Implementing and Enforcing Olmstead
A National Onsite Training
Olmstead Developments in the Courts
May 11, 2011
Presenter:
C. Talley Wells
Atlanta Legal Aid
CIL-NET, a project of ILRU – Independent Living Research Utilization
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Olmstead 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. (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
Americans with Disabilities Act (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 Olmstead
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 Defense
fundamentalalteration [defense]. . . would allow the
“Sensibly construed, 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 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 Defense,
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?
• 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?
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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Medicaid Waivers
•
Olmstead cases often involve Medicaid Waivers.
•
If qualify for Waiver but not receiving it, does
Olmstead automatically apply? Probably not.
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Medicaid Waivers, cont’d.
•
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).
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Medicaid Waivers, cont’d. 2
•
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.
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Medicaid Waivers, cont’d. 3
• State cannot reduce services in Medicaid Waivers
in way that could increase institutionalization.
Fisher (10th Cir. 2003).
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Recent Increased Federal
Involvement
• 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????
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Recent Increased Federal
Involvement, cont’d.
• HUD, CMS, and White House Olmstead
initiatives
• Money Follows the Person
• New Healthcare Reform
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Issues Going Forward
•
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?
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Our Olmstead Responsibilities
•
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!
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Thank You
Talley Wells
Mental Health and Disability Rights Project
Atlanta Legal Aid Society, Inc.
www.atlantalegalaid.org
[email protected]
404-377-0705 ext. 282
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CIL-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.
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