1. Using Class Action Litigation to Enforce the ADA’s Integration Mandate
This is the primary cover page.
Brown v. District of Columbia
Iris Y. Gonzalez
(202)
The National Consumer Voice for Quality Long Term Care Annual Conference
November 3, 2016

2. Introduction
AARP Foundation Litigation (AFL) is an advocate in courts nationwide for the rights of vulnerable people 50 and older, addressing diverse legal issues that affect their daily lives and assuring that they have a voice in the judicial system.
Our focus – impact litigation and legal advocacy
My focus – health, long term care, disability rights

3. Objectives
Understand the obligations imposed on state governments by the ADA’s Integration Mandate, as interpreted by the Supreme Court in Olmstead v. LC
Provide overview of the claims in Brown v. D.C.
Understand how to identify systemic barriers to transitioning from nursing facilities to HCBS
Consider advocacy and/or litigation tools to encourage state compliance with integration mandate

4. Olmstead v. LC
Unjustified isolation/segregation of persons with disabilities IS disability discrimination
Because . . .
“[I]nstitutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.”
And
“[C]onfinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.”

5. Affirmative Obligation Under Integration Mandate
States have an affirmative obligation under the ADA’s Integration Mandate to:
“administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities”
and provide reasonable accommodations to move people with disabilities from segregated facilities to integrated settings when . . .

6. Provide Reasonable Accommodation
community placement is appropriate;
the individuals do not oppose community placement; and
return to the community can be reasonably accommodated.
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 587, 592 (1999); 28 C.F.R § (d) (2016).

7. Brown v. DC
Under this legal standard, we filed a class action in 2010 on behalf of nursing facility residents who want to live in the community
Class defined as:
D.C. nursing facility residents whose care is funded by Medicaid;
Have been in nursing facility for at least 90 consecutive days during the pendency of suit;
Qualify for LTC HCBS
Want to receive LTC in community settings but need the District’s help to access those services
Long procedural history – engaged in extensive discovery, survived a motion to dismiss, obtained class certification, survived challenge to class certification, had unsuccessful settlement discussions
Trial began in September and will continue next week
Some named plaintiffs have passed away during the pendency of the suit

8. Basic Claims
There are systemic deficiencies in the way that the District administers its LTC services that are a substantial factor in plaintiffs’ unjustified, continued and prolonged segregation in nursing facilities
D.C. does not have an effective system of transition assistance to help nursing facility residents transition out of nursing facilities and into HCBS
Plaintiffs need, and D.C. has an affirmative obligation to provide, effective transition assistance

9. Systemic Deficiencies
DC fails to implement systematic and effective education and outreach for nursing facility residents to identify individuals who want to return to the community; and present all the available options to them
Relies on referrals from NF staff -- limited and ineffective (does not enforce MDS Section Q requirements)
Insufficient resources (one outreach specialist to cover 19 NFs)

10. Systemic Deficiencies
Fails to connect NF residents with services they need in community
Delays and dysfunctions in getting EPD Waiver enrollment
Difficulties getting case management and provider agencies to accept NF clients
About half of EPD Waiver slots are vacant
Process for assessing need for EPD and PCA services is flawed (slow and inaccurate)
Fails to hold contractors accountable
Does not identify and track the needs or delivery of transition assistance to nursing facility residents (people fall through the cracks, no systemic way of preventing this)
Implements programs in a way that limits their effectiveness
Mismanagement of EPD Waiver; MFP Voucher lottery; inactive list

11. Systemic Deficiencies
Housing is not an insurmountable challenge
People who have housing in the community are still stuck in NFs because District fails to connect them with services
Fails to assist in identifying and applying for subsidized housing, and for accessible housing
Does not effectively assist to get identification documents and income statements
Reliance on resident/family members to find housing while in NF
Fails to help NF residents preserve the housing they had before NF admission
No systemic effort to take steps to preserve housing from day 1 of admission (some funds available for SS recipients, but only for 6 mos)
90-day minimum stay requirement to get transition assistance from ADRC and MFP, but know that those in for more than 90 days are more likely to lose housing more likely to have challenges

12. Systemic Barriers
Has not allocated resources to address the transition needs of nursing facility residents
Does not know how many people want/could transition
So fails to set appropriate transition goals
Does not seek the resources necessary to meet the transition needs
MFP operational protocol identified 580 interested in transitioning, but first year’s goal set at 40; subsequent goals similarly low; decreased goal; often did not meet goal
MFP initially did not included persons with physical disabilities, only IDD population
Ending MFP a year early
Fails to transition sufficient number of individuals out of NFs

13. Systemic Deficiencies
Lack of leadership, effective management, and accountability
Lack of clear and effective policies and procedures for
Providing transition assistance
Assessing needs for HCBS
Linking NF residents to available HCBS
Enrolling in key services (e.g., EPD Waiver)

14. Our Clients Suffering Unjustified Segregation and Need Effective Transition Assistance
3 name plaintiffs testified in court; 4 others via their depositions because they passed away or were too ill to be in court in person
All expressed that:
They felt confined in the NF
Their connections to family and friends severely limited
They wanted out the day they arrived
They need help accessing available services
Their preferences need to be heard and made a reality

15. Need Transformation
Change belief that people with disabilities –and older people – belong in nursing facilities
Respect the individual’s choice for the setting in which to receive long term care and supports
Evaluate how your state administers LTSS and determine if there are systemic barriers to transitioning
Remind states that they have an affirmative obligation to administer services in way that does not result in unjustified segregation
Bring suits, hold state governments accountable
LTCO critically important in helping to effect these changes!

16. AARP Foundation Litigation
Thank you!!
Iris Y. Gonzalez
AARP Foundation Litigation