Rights – June 22 Marks 19th Anniversary of Olmstead Decision

June 22 will be the 19th Anniversary of the Supreme Court’s ruling in Olmstead v. LC. The case involved Lois Curtis and Elaine Wilson, two women intellectual disability and psychiatric disabilities who were living at the Georgia state psychiatric hospital. Despite clinical assessments determining that a community setting would be appropriate, the state of Georgia refused to allow them to receive services outside of the institution. The Court ruled that placement in an institutional setting against one’s will against clinical recommendations violated the Americans with Disabilities Act.

Senate Holds Hearing on 15th Anniversary of the Supreme Court’s Olmstead Decision; Chairman Harkin Introduces the “Community Integration Act”

Last week, the Senate Committee on Health, Education, Labor and Pensions held a hearing on “Moving Toward Greater Community Inclusion – Olmstead at 15,” in recognition of the anniversary of the Supreme Court’s June 26, 1999 decision in Olmstead v. L.C. In its decision, the Supreme Court held that the unnecessary segregation of people with disabilities violates their civil rights under the Americans with Disabilities Act of 1990. Witnesses included Ricardo Thornton and Donna Thornton, two self-advocates from Washington, DC who have a long history of working closely with The Arc. The Thorntons shared their experience of living at DC’s former public institution for people with intellectual and developmental disabilities – and subsequently leaving the institution, getting married, and raising a family together. Other witnesses included Emmanuel Smith, PABSS (Protection and Advocacy for Beneficiaries of Social Security) Advocate, Disability Rights Iowa, Des Moines, IA; Norma Robertson-Dabrowski, Director of Nursing Home Transitions, Liberty Resources, Philadelphia, PA; Gail Godwin, Executive Director, Shared Support Maryland, Baltimore, MD; and Dr. Troy Justesen, Director of Public Policy, Utah Developmental Disabilities Council, Orangeville, UT. Visit the Committee web site to view video of the hearing and written testimony.

At the hearing, Committee Chairman Tom Harkin (D-IA) announced his introduction of the Community Integration Act (S. 2515), to ensure “people with disabilities can choose to live in the community and receive the same supports and services they would receive in institutional settings.” As summarized in Chairman Harkin’s announcement, the Act would:

  • Eliminate the Nursing Home Bias in Medicaid by clearly allowing the provision of similar care or services in home- and community-based settings.
  • Prohibit states from making anyone ineligible for home- and community-based services based on a particular disability.
  • Require states that have found an individual to be eligible for nursing or institutional care to similarly find those same individuals to be eligible for care in home- and community-based settings.
  • Set clear requirements for states regarding the provision of services in home- and community-based settings.
  • Require annual reporting by states about the number of individuals with disabilities in institutional settings and the number that have been transitioned to home- and community-based settings.

Department of Justice Enters Statewide Settlement Agreement with Rhode Island

The Department of Justice (DOJ) entered into the first statewide settlement agreement with the state of Rhode Island on behalf of people who are “unnecessarily segregated in sheltered workshops and facility-based day programs.”  DOJ found that the state’s day activity service system over-relied on segregated settings to the exclusion of integrated alternatives in violation of the Americans with Disabilities Act (ADA).

Under the settlement agreement, approximately 3,250 individuals with intellectual and developmental disabilities (I/DD) will have the opportunity to obtain integrated employment that pays at least minimum wage or participate in non-work activities in the community.  The consent decree will require the state to provide supported employment services over the next 10 years to about 2,000 people, including 700 in sheltered workshops, 950 people in facility-based non-work programs, and about 300 leaving high school.  Rhode Island also will provide transition services, such as trial work experiences, job site visits, and supported employment to 1,250 students between the ages of 14 and 21.  After having experiences in competitive employment settings, individuals who choose to remain at sheltered workshops may do so.

DOJ estimates that about 450,000 individuals with I/DD are in sheltered workshops nationwide.  The Rhode Island settlement provides a “road map” for other states to comply with Title II of the Americans with Disabilities Act.

Department of Justice Releases A Notice of Proposed Rulemaking to Amend the Americans with Disabilities Act Regulations

The US Department of Justice released a notice of proposed rulemaking (NPRM) to amend the Americans with Disabilities Act (ADA) regulations in order to incorporate the changes made by the ADA Amendments Act (ADAAA) of 2008. The NPRM makes changes to Titles II and III ADA regulations to amend the definition of disability which was broadened by the ADAAA and expand the definition of major life activities by including major bodily functions.  The NPRM includes examples of impairments, such as intellectual disability, that should easily be found to substantially limit a major life activity and cause the necessary individualized assessment of the impairments to be simple and straightforward.    The Title I ADA regulations were amended by the Equal Employment Opportunity Commission in March 2011.  The NPRM will align the definitions in Titles II and III with those in Title I.  The NPRM is open for comment for 60 days until March 31, 2014.

The Department of Justice and Texas Have Entered Into an Interim Olmstead Settlement Agreement

The Department of Justice (DOJ) Civil Rights Division, plaintiffs in a lawsuit against the state, and the state of Texas entered into an Interim Olmstead Settlement agreement concerning thousands of people with intellectual and developmental disabilities (I/DD) living in nursing homes. Texas has agreed to identify people with I/DD living in nursing homes and inform them about community options. The state must assist those who wish to move and provide the necessary services and supports. Texas agreed to create a system to help keep people from transferring from the hospital directly to a nursing home. Six individuals with intellectual and developmental disabilities, The Arc of Texas and the Coalition of Texans with Disabilities filed a lawsuit in 2010 and DOJ intervened in 2012 due to Texas’ failure to comply with the Americans with Disabilities Act (ADA), the Supreme Court’s decision in Olmstead v. L.C., and other laws which led to the unnecessary institutionalization of people with I/DD in nursing facilities. This interim agreement represents the first statewide Olmstead settlement on behalf of individuals with I/DD living in nursing facilities. Additional information, including briefs filed in the case and the interim agreement are on the ADA website.

Senate Health, Education, Labor, and Pensions (HELP) Committee Report Shows Many States Failing to Live up to Integration Mandate of the ADA

Last Week, Senate Health, Education, Labor, and Pensions (HELP) Committee Chairman, Senator Tom Harkin (D-IA) released a new report revealing that 14 years later, many states are failing to live up to the integration mandate of the Americans with Disabilities Act. The Supreme Court ruled in Olmstead v. L.C. in 1999 that the unnecessary segregation of individuals with disabilities in institutions is a violation of the Americans with Disabilities Act, thus directing states to enable community-based long-term care services for these Americans.

The report, titled “Separate and Unequal: States Fail to Fulfill the Community Living Promise of the Americans with Disabilities Act,” is the result of requests for information sent by Chairman Harkin to all 50 states on the progress made to transition individuals out of institutions. The full report, with executive summary, can be found here. A copy of responses from states can be found here.

The Department of Housing and Urban Development Issues Guidance on Olmstead

The U.S. Department of Housing and Urban Development (HUD) issued new guidance to HUD-assisted housing providers on how they can support state and local Olmstead efforts to increase the integrated housing opportunities for individuals with disabilities who are transitioning from, or at serious risk of entering, institutions and other restrictive, segregated settings.

Settlement Agreement Reached with the State of Rhode Island and the City of Providence Resolving Violations of the ADA

The US Department of Justice (DOJ) reached an interim settlement agreement with the State of Rhode Island and the city of Providence resolving violations of Title II of the Americans with Disabilities Act (ADA). The agreement addresses the unnecessary segregation of individuals with intellectual and developmental disabilities (I/DD) in a sheltered workshop and segregated day activity service program and the placement of students with I/DD at risk of unnecessary segregation in those programs. The settlement impacts about 200 Rhode Islanders with I/DD who have received services in the segregated programs. The state will no longer fund the sheltered workshop or segregated day program and the city will stop funding the in-school sheltered workshop. Over the next year, individuals will receive person-centered career development planning, transitional services, supported employment, and integrated day services with the goal of working 20 hours per week at competitive wages.

Department of Housing and Urban Development Issues Guidance on Olmstead

On June 5, 2013, the U.S. Department of Housing and Urban Development (HUD) issued new guidance to HUD-assisted housing providers on how they can support state and local efforts to increase the integrated housing opportunities for individuals with disabilities who are transitioning from, or at serious risk of entering, institutions and other restrictive, segregated settings. The guidance provides background information about the integration mandate under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act and the Supreme Court decision in Olmstead v. L.C. The guidance also includes a question and answer section addressing the definition of integrated setting and the role HUD agencies play in Olmstead implementation planning.

Statement of Interest Filed in Case That Argues the Olmstead Decision Created a Right to Institutionalization

The US Department of Justice (DOJ) filed a statement of interest in a case in Illinois in which the plaintiffs argue that the Olmstead decision created a right to institutionalization. The case was filed by guardians of individuals who reside in one of the state’s Developmental Centers. Illinois plans to close two of its centers and redirect the dollars to community-based services. In its brief, DOJ stated that the Americans with Disabilities Act does not confer a right to remain in any given institution and that courts have found that it does not violate federal law for states to close an institution.