1. 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

2. 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

3. Brown v. Board of Education3

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

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

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

7. 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

8. 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

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

10. 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

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

12. 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

13. 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.”

14. 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.

15. 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.

16. 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;

17. 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

18. 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.

19. 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.

20. Thank You Talley Wells Mental Health and Disability Rights Project
Atlanta Legal Aid Society, Inc.
ext. 282

21. CIL-NET Attribution
Support for development of this training was provided by the U.S. Department of Education, Rehabilitation Services Administration under grant number H132B 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.