Implementing and Enforcing Olmstead A National Onsite Training CIL-NET Presents… Implementing and Enforcing Olmstead A National Onsite Training Applying Lessons from the Evolution of  Brown v. Board of Education to Olmstead May 11, 2011 Presenter: C. Talley Wells Atlanta Legal Aid 1

Presentation Based on the Paper Charles R. Bliss & C. Talley Wells, Applying Lessons from the Evolution of Brown v. Board of Education to Olmstead: Moving from Gradualism to Immediate, Effective, and Comprehensive Integration, 26 Ga. St. U. L.R. 705 (2010). 2

Brown v. Board of Education 3

Brown and Olmstead Similarities Desegregation/integration Overcoming entrenched attitudes Large shift of resources Complex interests opposing significant change 4

Evolution of the Remedy in School Desegregation Cases Brown requested briefing on relief Brown II “all deliberate speed”

Initial response -- Brown Lower courts attempted to limit scope Remedy = order a plan Unguided discretion ineffective Weak plans, i.e. freedom of choice

Brown around ten-year anniversary S. Ct. "entirely too much deliberation & not enough speed. . . .“ Courts mandate actual desegregation still gradual, i.e. grade by grade Justice Dept became involved. began requiring more comprehensive remedies sextet -- student bodies, faculty, staff, transportation, extracurricular, facilities

Courts Moved to Mandating Immediate Desegregation Green (1968) burden on school to create realistic plan that will work now Carter (1970) - “immediately . . . operate as unitary school systems" Justice Department became involved in later years, which helped increase systemic change

Olmstead v. L.C. (S.Ct. 1999) Desegregation/Integration decision. Main battle: Reasonable Accommodation vs. Fundamental Alteration. 9

Olmstead v. L.C. (S.Ct. 1999) State may have fundamental alteration defense if demonstrates it has comprehensive effective working plan with reasonably paced waiting list.  There are both positives and negatives of most of these programs. ICFMR Rebalancing/CRI Reduction in institutional placements BUT many moved to congregate yet less congregate housing SSI Managed Care Continuity of care issues were addressed Family Care Reduction of waiting lists BUT reduction in services, provider rate cuts Options Counseling not separate like in SSI Managed Care 10

Olmstead More than 10 Years Later Fewer cases than Brown Plans, Waiting Lists Mostly gradual and individual relief Justice Dept Now Active

Time for Immediate Relief Brown -- all deliberate speed to immediate Olmstead -- working plans/waiting lists to now 21 years after ADA / 12 years after Olmstead 12 years of lives wasted in institutions 12

So in 1999 Olmstead Court said . . . “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 not controlled by the State’s endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met.”

but question now should be . . . not whether immediate relief is inequitable but whether relief, which the state has had at least twelve years to develop, is inequitable.

Effective Relief No dumping or closing without building community. Best practices (that work and are integrated). maintain jurisdiction to see results. dramatic and drastic steps.

Comprehensive Relief Not individual but system wide (1) assessments of all individuals in institutions; (2) accessible education on community service options to those in institutions and those at risk;

Comprehensive Relief, cont’d. (3) sufficient quality integrated community services and supports for both individuals in institutions and those at risk; (4) adequate transition services; (5) quality controls

Final Thoughts Engage Justice Department and Office for Civil Rights HHS. Spread Message of Olmstead, Desegregation, and Integration. Engage economists, lawyers, policy makers, media, freedom allies, and influential. Work across disability groups and states. Change Paradigm – Envision world without institutions.

Final Thoughts, cont’d. Create Olmstead Plan (whether state does or not) so that you have comprehensive vision of community infrastructure that must exist (employment, housing, services, etc.) Demand Immediate, Effective, and Comprehensive Transformation envisioned by Olmstead.

Thank You Talley Wells Mental Health and Disability Rights Project Atlanta Legal Aid Society, Inc. 404-377-0705 ext. 282 ctwells@atlantalegalaid.org

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.