1 Budget Symposium OACBDD John L. Martin, Director August 21, 2013

2 Agenda The Connection between the DODD FY 14 and 15 Biennium Budget and Olmstead

National Trends 3 Olmstead and the Department of Justice: Continued movement away from ICF/IID to waivers and smaller settings. Movement from “sheltered work” supportive employment.

Supreme Court Upholds Americans with Disabilities Act ‘Integration Mandate’ in Olmstead decision on 6/22/99 4 In rejecting the state of Georgia’s appeal to enforce institutionalization of individuals with disabilities, the Supreme Court affirmed the right of individuals with disabilities to live in their community in its 6-3 ruling against the state of Georgia in the case Olmstead v. L.C. and E.W. The ‘integration mandate’ of the Americans with Disabilities Act (ADA) requires public agencies to provide services “in the most integrated setting appropriate to the needs of the qualified individuals with disabilities.”

5 “Olmstead was brought by, and thus decided in the context of, two women with developmental disabilities who were challenging their unnecessary segregation in a residential institution owned and operated by the State. Id. at 593. Nevertheless, neither the principles of the decision nor the integration regulation is limited to the decision’s particular facts. Thus, courts have applied the Olmstead Court’s analysis to numerous other facts and circumstances involving the unjustified isolation of persons with disabilities, including claims by persons with physical or non-mental disabilities, claims to prohibit unnecessary segregation in private segregated facilities funded under the state’s disability services system, and claims to prohibit cuts to community services that would place persons at risk of unnecessary institutionalization.” Taken from the STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA Lane v. Kitzhaber, 2:12-cv ST filed by Thomas E. Perez on April 20, 2012 in the Oregon DOJ action.

6 “Just as the text of Title II and the integration regulation is not restricted to person with mental disabilities, to state-owned facilities, or to persons already institutionalized, so too is this statutory and regulatory text not limited solely to residential settings. Accordingly, the U.S. Department of Justice has continued to make clear that the integration regulation prohibits the unnecessary segregation of persons with disabilities by public entities in non-residential settings, including segregated sheltered workshops.” Taken from the STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA Lane v. Kitzhaber, 2:12-cv ST filed by Thomas E. Perez on April 20, 2012 in the Oregon DOJ action.

Olmstead Activity 7 In 2009, the Civil Rights Division launched an aggressive effort to enforce the Supreme Court’s decision in Olmstead v. L.C., a ruling that requires states to eliminate unnecessary segregation of persons with disabilities and to ensure that persons with disabilities receive services in the most integrated setting appropriate to their needs.

Olmstead Activity 8 The Department of Justice continues to work with state and local governments officials, disability rights groups and attorneys around the country, and with representatives of the Department of Health and Human Services, to fashion an effective, nationwide program to enforce the integration mandate of the Department’s regulation implementing title II of the ADA.

Olmstead Activity An active Department of Justice armed with Olmstead and the ADA. 40 actions in 25 states in recent years – Settlement agreement – Litigation – Findings Letter 9

Ohio’s Olmstead Concerns 10

11 States with over 1,000 people in State Institutions age 16 and over ( ) State % decreased in 2 years CPD# of BedsRanking * 1. Texas12%4744, New Jersey2%6222, Illinois12%5372, California19%9081, North Carolina4%4681, Mississippi3%3101, New York12%1,4301, Ohio14%5111, Pennsylvania6%7531, Virginia7%5821,10537 National12% 29,574 * Indicates overall ranking of all states and D.C., number of beds adjusted for population

20 states have fewer than 100 people living in state institutions with over 16 beds. 13 states no longer operate any facilities. 12

State with more than 1,000 private ICF/IID Beds 16 beds and above for FY 11 State# of beds 1. Ohio3,417 1Illinois3,384 2California2,092 3New York2,003 4Pennsylvania1,842 5Florida1,545 6Iowa1,454 National23,603 13

15 states have no one living in a private facility larger than

Nationally, over the past 10 years, the number of people living in private facilities larger than 16 beds has decreased by 33%. In Ohio, we have actually increased by 6%. 15

Our Olmstead concerns extend beyond the ICF/IID program. 16

Of the money spent in Adult Services 7% - Supported Employment 93% - Sheltered Work/Enclaves 17

There are more people receiving services in sheltered workshops in Ohio than any other state. 18

The Data Trail 19

Sheltered Workshop (SW) StateSW People Served 1. Ohio17, New York14, Minnesota11, California 10, Pennsylvania 9, Wisconsin 6, Michigan 4, Indiana 4, Massachusetts 3, North Carolina 3,131 20

Sheltered Workshop (SW) StateSW Person Count Per 100K 1. Minnesota South Dakota Ohio Wisconsin Iowa Rhode Island Pennsylvania New York Oregon Indiana 65 21

Integrated Employment (IE) StateIE Person Count Per 100K 1. Vermont Connecticut Washington New Hampshire Oregon Maryland Rhode Island Ohio Oklahoma Iowa 62 22

Facility-Based and Community-Based Non- Work Per 100, Rhode Island Vermont New York Nebraska Colorado District of Columbia Alaska Wisconsin Oregon Indiana Ohio102

Total Served in Day Services Per 100, Vermont441 2.New York355 3.Iowa313 4.South Dakota293 5.Rhode Island288 6.Ohio284 7.Oregon279 8.District of Columbia274 9.Minnesota Nebraska261

Day Services Per 100, Ottawa51 2.Van Wert46 3.Henry46 4.Putnam42 5.Wyandot41 6.Sandusky41 7.Allen40 8.Paulding40 9.Richland40 10.Clark40 11.Seneca38 12.Carroll38 13.Belmont37 14.Hocking37 15.Perry37 16.Pike37 17.Lucas37 18.Darke36 19.Mercer36 20.Guernsey35

Facility-Based Work Per 100, Van Wert37 2.Ottawa36 3.Vinton34 4.Pike33 5.Clark31 6.Guernsey30 7.Carroll30 8.Paulding30 9.Putnam30 10.Monroe28 11.Wayne27 12.Sandusky27 13.Wyandot26 14.Seneca26 15.Lawrence25 16.Richland24 17.Morgan23 18.Perry22 19.Meigs22 20.Columbiana22

Integrated Employment Per 100, Henry20 2.Mercer17 3.Clinton17 4.Union16 5.Allen14 6.Wood14 7.Fayette11 8.Washington11 9.Lorain11 10.Morgan11 11.Athens11 12.Medina10 13.Knox10 14.Sandusky 9 15.Stark 9 16.Hancock 9 17.Logan 8 18.Belmont 8 19.Lucas 8 20.Summit 8

Nationally the emphasis is on integrated employment and a de- emphasis on sheltered workshops. This has created a series of trends, including employment first policies like Ohio initiated a year ago. This was a key initiative of the current chair of the National Governor’s Conference. 28

National Trends Performance based rates A few states are totally out of the sheltered workshop business A number of states have closed the front door on sheltered workshop admissions Virtually every state is looking at realigning their funding away from sheltered workshops Increase effort to eliminate the subminimum wage exemption Working age adult policy (can only go into adult day after 9 months in Integrated Employment) 29

30 DODD issued its White Paper on ICF/IID’s and its Employment First Policy as a result of these Olmstead concerns.

As a result of the recently passed budget: Money and language changes will continue to support employment efforts. ICF language and money will support downsizing and conversions. Providers have committed to 1200 beds being converted or downsized over the next 5 years. Downsizing of developmental centers will continue at 90 per year. 31

Language Changes in the Budget Language Provisions for Employment Rebalancing: Employment First – Make changes to improve data collection – Make permanent the Governor’s Employment First Taskforce – Create a presumption that all individuals with disabilities can work – Ask local county boards to create their own employment first policies – Create a new employment first line item 32

Employment First Line Item ($3 million a year) 1.Put up a data collection system 2.Fund seven pilot local teams 3.Provide statewide training in supported employment 4.Implement with Opportunities for Ohioans with Disabilities (RSC) a program to fund job placement for 1,500 working age adults a year statewide. (Hamilton County is slated for approximately 120 slots per year) Goal: Move 5.5% of individuals served in segregated settings to integrated employment per year. 33

34 Our efforts to support downsizing, conversion of ICF to Waiver, and Employment are based on more than Olmstead and the fear of litigation.

35 The transition from ICF’s to Waivers and from Sheltered Workshops to Integrated Employment is based on some fundamental principles. 1.Choice: part of being human is the right to make choices. The more choices we take away from people the more we dehumanize them. Think prisons, dictatorships, communism, slavery and segregation.

PRINCIPLES – CHOICE continued 36 In this context Olmstead and the “American’s with Disabilities” Act are at their core civil rights legislation. Their aim is to put choice and control in the hands of individuals and their guardians, not the provider. In the ICF program the provider controls many choices, including day services and most important, the funding for the bed. In the Waiver program this control is transferred from provider to the individual or guardian. They can take their money and leave.

PRINCIPLES - Segregation 37 2.Segregation: ICF’s and sheltered workshops are often larger (Ohio has 3,400 people living in facilities larger than 16 beds) segregated campus like settings. Segregation sends a dehumanizing message “they are not like us”, and either “we need to be protected from them” or “they need to be protected from us” or “they are so unlike us they can not live like us.”

3. Money: provides the opportunity for real choice, self-esteem and freedom. 38 PRINCIPLES - Money

These principles of segregation and choice create National pressure and National trends which question the long term viability of the ICF program and sheltered workshops and the willingness of the Federal Government to continue funding these program. 39