Olmstead Enforcement and the US v. Virginia Settlement Agreement Department of Justice Civil Rights Division Special Litigation Section

Olmstead is a top priority for DOJ’s Civil Rights Division “Year of Community Living” – " The Olmstead ruling... articulat[ed] one of the most fundamental rights of Americans with disabilities: Having the choice to live independently. [T]his initiative reaffirms my Administration’s commitment to vigorous enforcement of civil rights for Americans with disabilities and to ensuring the fullest inclusion of all people in the life of our nation.” President Obama June 22, 2009 DOJ Olmstead enforcement efforts – approx 40 matters in 25 states over the past several years

DOJ’s Olmstead Enforcement Objectives Help people with disabilities live like people without disabilities Help people with disabilities have true integration, independence, choice and self- determination in all aspects of life – where people live, how they spend their days, and real community membership

Objectives (cont’d) Ensure quality services that meet people’s needs and help them achieve their own goals – Accountability of services/quality management – Person-centered planning – Informed choice

Important Lessons Not just about moving people out of institutional settings; focus on creating quality community alternatives Engagement of a range of stakeholders – consumers, families, advocates, providers – is essential

Important Lessons (cont’d) Access to quality community services and affordable, integrated housing critical to success of Olmstead efforts – Cross-agency collaboration with DOJ, HHS, and HUD

Range of DOJ “Tools” Investigations & Findings Letters leading to Settlement Agreements or Litigation for system reform Intervention in private Olmstead litigation Statements of Interest practice in private litigation on many Olmstead issues Olmstead Technical Assistance Guidance Olmstead website (

Legal Background

Title II of the ADA Prohibits discrimination by public entities in services, programs and activities Integration regulation requires administration of services, programs and activities in the most integrated setting appropriate Most integrated setting is one that enables people with disabilities to interact with people without disabilities to the fullest extent possible

Olmstead v. L.C.: Unjustified segregation is discrimination Supreme Court held that Title II prohibits unjustified segregation of people with disabilities Set out “two evident judgments” about institutional placement: 1. “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life” 2. “severely diminishes the everyday life activities of individuals,” including family, work, education and social contacts

Olmstead v. L.C. (cont’d) Held public entities are required to provide community-based services when: – Such services are appropriate; and – Affected persons do not oppose community-based treatment; and – Community-based treatment can be reasonably accommodated, taking into account the resources available to the entity and the needs of others receiving disability services

When is the ADA’s Integration Mandate Implicated? Not limited to state-run facilities/programs Applies when government programs result in unjustified segregation by: – Operating facilities/programs that segregate people with disabilities – Financing the segregation of people with disabilities in private placements – Promoting segregation through planning, service design, funding choices, or practices.

Who Does the Integration Mandate Cover? ADA and Olmstead are not limited to individuals in institutions or other segregated settings They also extend to people at serious risk of institutionalization or segregation – Example: people with urgent needs on waitlists for services or people subject to cuts in community services leading to the person’s unnecessary institutionalization.

Significant DOJ Olmstead Enforcement Efforts

State-Operated Facilities Settlement Agreements: – US v. DE – community svs. for 3,000+ people in or at risk of entering state psych hospital and private facilities ACT, crisis services, supported housing, supported employment – US v. VA – community svs. for 4,200+ people in state DD facilities & on waitlist for comm. svs. HCBS waivers, crisis services, family supports, case management, supported employment, enhanced QA

State-Operated Facilities (cont’d) – US v. GA – community svs. for 1,000+ people in state DD facilities and on waitlist and 9,000+ people in or at risk of entering state psych hosp. Litigation: – US v. NH – re: people with MI in or at risk of entering state psych hospital and state-run nursing facility for people with MI Open Findings letters : – Mississippi Findings Letter – violations re adults & children in public and private DD and psych facilities and people on waitlists for community system

Private Facilities Adult care homes (large board and care homes for people with MI) – US v. NC – settlement providing community svs to 3,000+ people in or at risk of entering ACHs Supported housing, ACT, supported employment, transition supports, enhance QM – DAI v. Cuomo – DOJ intervened in litigation regarding people with MI in adult homes in NYC, seeking integrated supported housing + community supports

Private Facilities (cont’d) Nursing homes – Intervention in Steward v. Perry (Texas) Thousands of people with DD in and at-risk of entering private nursing homes – Florida Findings Letter regarding children with DD in nursing homes Also relief in VA agreement Private ICFs – Statement of Interest in private litigation

Supported Employment and Integrated Day Activities ADA and Olmstead not limited to where people live; also applies to how people spend their days: – Settlements in VA, DE, NC and GA– Expansion of supported employment & integrated day activities – Lane v. Kitzhaber (Oregon) DOJ Statement of Interest that ADA’s integration mandate applies to more than residential services, but to all “programs, services, and activities” of public entities, including employment and day services; court agreed

Supported Employment (cont’d) Findings letter in Oregon, concludes that: – OR plans, structures and administers its employment and vocational services in a way that over-relies on segregated center-based work – Center-based work has indicia of segregation Little to no contact with non-disabled peers Work doesn’t prepare PWD for integrated e-ment Long stays, little chance to move to integrated e-ment Little autonomy as to tasks or matching skills to tasks Segregated layouts (isolated from mainstream transportation and businesses, separate staff areas, etc.)

Supported Employment (cont’d) State contributes to over-reliance on center- based work by: – Failure to develop and fund enough community-based supported employment (decrease in capacity over the last decade) – Students transitioning from schools are not given an option of supported employment and many schools refer students to centers for assessment – Voc rehab assessment tool that leads to finding most people with ID/DD ineligible and assessment done by centers

Supported Employment (cont’d) Recommended remedial measures include: – Increase supported employment capacity – Improve school transition to focus on work in integrated settings and start planning earlier – Ensure VR assessments and other practices don’t lead to unnecessary ineligibility – Implement plan for transition planning for people currently in center-based work who are appropriate for and, after inreach, want supported employment

At-Risk Cases Significant statement of interest practice supporting private plaintiffs – Cuts to critical services without individualized assessments of impact or exceptions process – Policies requiring people to first enter an institution in order to access community services – Providing services to persons in institutions, but not equivalent services to individuals in the community

Guidance and Website Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. (June 22, 2011) Website: – All settlement agreements, findings letters, briefs, guidance, testimony, speeches, etc. Faces of Olmstead: People impacted by DOJ’s Olmstead enforcement work

Virginia Settlement Agreement

Goals of Settlement Agreement  Integration  Self-determination  Quality Services  Platform for Progress

Topics in Settlement Agreement 1.Waivers 6. Case Management 2.Family Supports 7. Quality Assurance 3.Crisis System 8. Implementation 4.Integrated Housing 5.Integrated Employment

Waivers (over 10 years) 800 Waivers  Training Center to community 3,000 Waivers  ID on “urgent” waitlist & youth with ID in private institutions 450 Waivers  DD on waitlist & youth with DD in private institutions Helps to shift Virginia’s disability system to a Community System

Waivers (Cont’d) Waivers are PRIORITIZED to the groups on previous slide But any UNUSED Waivers can be shifted to other groups

Family Supports A comprehensive and coordinated set of strategies that are designed to ensure that families have access to resources, supports and services. By 2014 = 1,000 Individuals not receiving Waiver

Crisis System 24/7 Crisis Hotline (statewide) Mobile Crisis Teams In-home 24-hour Preventative

Crisis System (cont’d) Crisis Stabilization Short-term Last resort Small Not on Training Center grounds

Integrated Housing Home First Belief that people with disabilities can live in their own homes, family homes, or small integrated housing (4 or fewer beds) Priority to your own home/family home

Integrated Housing (cont’d) Home First  Meaningful options & choice Coordination with providers and families Peer-to-peer/ Family-to-family

Integrated Housing (cont’d) If not home  then small congregate setting (4 or fewer beds) If not small setting  then BARRIER BUSTING (Example) Home First 

Integrated Housing (cont’d) $800,000 State fund

Supported Employment Employment First policy – Individual supported employment in integrated settings first and priority service option – Minimum or competitive wages – Employment services and goals part of annual ISPs Implementation plan to increase integrated day opportunities, including: – Supported employment – Community volunteer activities – Community recreation activities

Supported Employment (cont’d) Annual baseline information and targets to increase the number of people receiving waivers who enroll in supported employment and remain in integrated work settings Training on Employment First policy and strategies

Case Management Who’s involved? Professionals & nonprofessionals who provide individualized supports Individuals being served Other persons important to the indv.

Case Management (cont’d) Regular face-to-face meetings Individual Support Plans Training What’s involved? Regular visits to the residence

Case Management (cont’d) Enhanced case mgmt. for indv. with: providers w/ conditional or provisional licenses more complex needs experiencing serious crises in large congregate settings discharged from Training Center What’s involved (cont’d)?

Quality Assurance Virginia must collect & analyze reliable data to ensure that services are good quality and meet individuals’ needs. Enhanced trending of data by DBHDS

Quality Assurance (cont’d) Expanded reporting for providers  Safety  Physical and mental well being  Avoiding crises  Stability  Choice & self-determination

Quality Assurance (cont’d) Expanded reporting for providers  Community inclusion  Access to services  Provider capacity

Quality Assurance (cont’d) Expanded review through licensing Expanded training  Core competency-based  Person-centered Expanded Case Mang (as noted in earlier slides)

Quality Assurance (cont’d) Providers must develop a Quality Improvement (“QI”) program Virginia will use Quality Service Reviews (“QSRs”) to evaluate the quality of services

Implementation Oversight o Independent Reviewer  Donald Fletcher Over 40 years experience in DD/ID programs Assisted by subject-matter expert consultants

Implementation (cont’d) Oversight o Independent Reviewer (cont’d)  Assessing Compliance Analyzing data Observing programs and services Engaging with Stakeholders Having ongoing discussions with State, CSBs, & Providers  Issuing public compliance reports

Implementation (cont’d) Oversight o Department of Justice Analyzing data Engaging with Stakeholders Having ongoing discussions with State & other officials o Stakeholders Participating in Regional Quality Councils

Implementation (cont’d) Stakeholder Input o With DOJ, the State, and Independent Reviewer Accountability o Ongoing involvement of the DOJ & Stakeholders o Agreement is court enforceable

Website -Settlement Agreement -Summary of Settlement Agreement -Fact Sheet -Complaint -Investigative Findings

Contact Information Aaron Zisser Department of Justice Civil Rights Division Special Litigation Section Bo Tayloe Kyle Smiddie Alison Barkoff