Thank you. Welcome to the ADA Distance Learning Series hosted by your regional Disability and Business Technical Assistance Center. Thank you for joining us today for today''s session implementing Olmstead which kicks off our third season of the ADA Distance Learning Program. We have with us today Barry Taylor from Equip for Equality, the protection and advocacy organization for Illinois and Elizabeth Priaulx, from the National Association of Protection and Advocacy Systems. Hi Barry and Elizabeth.
Thank you for joining us today. I would like to let our sites know that the session is currently being real-time captioned at the Great Lakes web site at www.adagreatlakes.org. Please note that Barry has also provided a handout summarizing the Supreme Court''s Olmstead decision which is also available on the Great Lakes web site, you can either check it out right now if you have Internet access or access it later after the session. In 1999 the Supreme Court made a groundbreaking ruling in the Olmstead case. The decision has subsequently sent all 50 states into planning mode evaluating services for people with disabilities and pulling together action plans. Both Barry and Elizabeth have been actively involved in Olmstead implementation from a protection and advocacy perspective. Today we are going to break this session into two parts, first Barry is going to give us a brief overview on the Olmstead decision and the state activities that it sparks then Elizabeth will highlight the activities of individual states and we will open it up to question and answers from all of you at our sites. So with that said, Barry I will turn it over to you first.
Thanks Jennifer. I will be giving a brief overview of the integration mandate under the ADA and the Olmstead case and then briefly touching on how the Constitutional challenges to the ADA might affect community integration cases in the future as well as discuss how some courts have interpreted the Olmstead case since the case was decided in the summer of 1999. As many of you know, the when Congress passed the ADA it found that the isolation and segregation of people with disabilities was a pervasive form of discrimination. And that discrimination against people with disabilities includes institutional settings. The Olmstead case focused on Title II of the ADA, which addresses services provided by state and local... (lost audio)
Did we just lose Barry there? Joan?
He did disconnect, ma''am.
So while we are waiting for Barry to come back on, Elizabeth I will turn it over to you. Give us a little bit of a background on what NAPAS has been doing as far as Olmstead and could you talk a little bit about the report that you are getting ready to release?
Okay. Yes. I will not talk about the basics, I will let Barry come on and do that. I am Elizabeth Priaulx, the community integration attorney with the National Association of Protection and Advocacy Systems, we have different names all around the country but they provide legal services to people with disabilities who have been discriminated against specifically on the basis of their disability. Olmstead implementation is crucial to people with disabilities. Because there are large legal components to what the decision says and how states will comply with it, NAPAS made it a priority to provide technical assistance to its members who are the P and A''s about what states are doing and what some of the best practices are. So we developed a report where we asked primarily P and A''s but also heard from a lot of DD councils, UA Ps, the ARC''s and many mental health planning council members folks from NAMI, and asked them how they thought their state was doing as far as implementation of Olmstead. That is what I will be reporting on to you after Barry speaks. It is basically some trends that we are seeing as far as how states believe they are complying, if they are doing a plan and calling a plan, their effort to comply with the decision. What do those plans say, what should advocates be concerned about, and what are some next steps for advocates to take to be the stick that the states need to...
Yes. Barry? Are you there?
I am here, I am not sure how to take it for some reason I got cutoff.
You were probably sitting in your office talking to yourself, we are glad you are back.
Glad to be back.
Elizabeth was giving us an update about what the report they are getting to release. So with that we will turn it back to you, I will sit on your hands so you do not touch any button or anything.
I do not think I did anything but whatever. I will be careful. Sorry for the interruption, hopefully it will not happen again. As I was discussing the Department of Justice was designated by Congress to not only enforce Title II of the ADA but also issues regulations explaining what Title II means. The regulation that are important for the Olmstead case, there is two of them. One is what many people refer to as the integration mandate regulations, that basically states that state and local governments must provide their services to folks with disabilities in the most integrated setting appropriate to their needs. The other important regulation is that which requires state and local governments to make reasonable modifications in their services to people with disabilities unless those modifications would result in a fundamental alteration which we will talk about in a second. The Olmstead case itself which many of you are familiar with, involved two women who have developmental delay and mental illness and were residents in a state operated hospital in Georgia. Both of them had been deemed appropriate for community placement by state treatment professionals but they remained hospitalized despite that recommendation, one for over a year and one for over three years. They filed suit under Title II alleging the state had violated the integration mandate of the ADA that I referred to before. The case worked its way up in the Courts and ultimately the Supreme Court heard the case and issued a ruling, an important statement on behalf of people with disabilities that unjustified institutionalization of people with disabilities is itself a form of discrimination that is actionable under the ADA. That is important because there had been an argument and a dissent stated that if people with disabilities are not being treated differently than people without disabilities, there is no action under the ADA. The majority here rejected that interpretation of the ADA, saying that no, in fact unjustified institutionalization in and of itself is discrimination and you do not have to compare the services people with disabilities are receiving to those without disabilities. That is an important statement that can be used not only in community integration cases but perhaps in other context as well. The Court basically stated that states are obligated to serve folks with disabilities in community settings rather than segregated institutional settings when three factors are present. The first is treatment professionals have determined that a community placement is appropriate. That was already present in the Olmstead case itself both women had been appropriate for the community. The second factor is that the person does not oppose community placement. Again neither of these women opposed being placed in the community in fact that is what they were seeking. The third factor was at issue in the Olmstead case, the placement can be reasonably accommodated taking into account the resources available to the state and the needs of others who are receiving services from the state and that the providing of these services to the plaintiffs would not fundamentally alter the state''s programs. So that really was the issue and in the Olmstead case. Ultimately the Court sent it back to the state of Georgia''s district court to review whether or not they could be accommodated and placed in the community. My understanding is that ultimately it was settled and they were placed in the community, but we do not have a opinion from the Georgia court as to whether or not that would have been a fundamental alteration because the case did settle. The Court went on to talk the fact that a state can meet obligations under Olmstead if it has a comprehensive effectively working plan for evaluating and placing folks with disabilities in less restrictive settings. Elizabeth will spend a lot more time talking about what advocates a comprehensive effectively working plan should include. The Court did not define that, so that is really open to interpretation point. The Court went on to say that the state can have a waiting list as long as it moves at a reasonable pace and it is not controlled by the state''s desire to keep its institutions fully populated. The issue of what is considered a reasonable pace is also an open issue that we expect to be litigated a lot in the courts below. One common question I get from folks with disabilities as well as others who are interested in this issue is how the Garrett decision issued by the Supreme Court earlier this year will impact Olmstead implementation. I think the short answer is, at this point I do not think it should slow down Olmstead implementation whatsoever. The Garrett case was focusing on Title I of the ADA, which addressed employment discrimination and in that case the Supreme Court held that Congress had exceeded authority when passing Title I of the ADA such that people with disabilities could no longer bring employment discrimination cases against the state in federal court for money damages. But the Court said that plaintiffs could still bring cases against state officials for non-monetary or injunctive relief in federal court. The Court also said that it was not addressing Title II, which as we said before is what Olmstead covers, and they made an inference that Title II might be stronger constitutionally than Title I. At this point the whole issue of the constitutionality of Title II is being bandied about in the lower courts, ultimately the Supreme Court may get it. If the case comes up and they find you cannot bring suit for money damages it is likely you can still bring a case for non-monetary injunctive relief against the state under Title II just like you can under Title I. Since Olmstead type cases are typically not seeking money damages for the plaintiffs but instead non-monetary relief like placement in the community, it would appear that Olmstead cases would still be viable despite some constitutional challenges to the ADA. The last thing I wanted to go over before I turn it over to Elizabeth is to discuss a few of the cases that have actually interpreted the Olmstead case since the Court''s decision in the summer of 1999. There have not been many. One important case is a case out of Hawaii the Makin case (Makin v. Hawaii, 114 F. Supp. 2d 1017 (HI D.C.. 1999)) that was decided in fall of 1999. That was a class action brought on behalf of individuals with developmental disabilities who were living at home without appropriate services. In that case the Court stated that the integration mandate of the ADA and thus the Olmstead case, applies not only to people who are institutionalized but also to those at risk of institutionalization if the state does not provide the appropriate services. That case is also important because it also looked at the issue of what is considered a fundamental alteration, which as we mentioned before is a possible defense that the state can raise. In that case the state had argued that by providing community services to the class members, the state would have been required to spend more money and potentially expands the size of its Medicaid waiver program and that that was a fundamental alteration. The Court said that was not sufficient to be a fundamental alteration at least at that stage of the case and that the state would have to provide more evidence in order to show a fundamental alteration. The case also settled after the Court''s ruling on that motion for summary judgment so there was not a trial in that case or reported decision after that initialing decision that I referenced. Another important case is the case called Richard C (Richard C. v. Houstoun, 196 F.R.D. 288 (W.D. Pa. 1999), aff''d 229 F.3d 1139 (3rd Cir. 2000)) out of Pennsylvania that was decided last year. It involved a situation where a facility that served people with developmental disabilities was being closed. Some family members who had family members who were residents of this facility sought to intervene in that case after the Olmstead decision. They were claiming that people have a right to receive services in an institution and the state was violating the ADA and Olmstead by forcing those folks out of the institution. The Pennsylvania court and ultimately the third Circuit Court of Appeals rejected the application of Olmstead. They said that it is not discrimination for a state to move people into community settings when professional treatment folks have stated that such placements are appropriate. In other words Olmstead does not guarantee a right to receive services in an institution, nothing in Olmstead precludes a state from closing or downsizing an institution, that part in Olmstead that said the person has to not oppose community integration would only apply in a situation where a case has been brought and then the evidence shows that the person, the plaintiff, is not agreeable to being moved into an institution, in that case they would not have to be forced into it. But states can obviously place folks in community settings if they deem that to be appropriate. Just two more cases then I will turn it over to Elizabeth. Frederick L case (Frederick L. v. Department of Public Welfare, 157 F. Supp. 2d 509 (E.D. Pa. 2001)) was decided earlier this summer. An important case, a class action on behalf of folks who are in a state psychiatric facility. The reason it is important is because it also addressed how Olmstead applies to Section 504 of the Rehabilitation Act. As many folks on this call know, the Rehabilitation Act provides that entities that receive federal funding also cannot discriminate against people with disabilities. There has been question as to whether the integration mandate and the Court''s decision in Olmstead not only applies to the ADA but if it also applies to Section 504 of the Rehab Act. This case said that yes in fact the analysis of the ADA would also apply to Section 504 as well and this is important because unlike the ADA which is deemed to be vulnerable to some of the constitutional attacks we referenced before, Section 504 of the Rehab Act has been upheld constitutionally at a greater extent than the ADA. So it is important to be able to utilize that as a tool in cases involving Olmstead issues in the event that the ADA proves to be, you know, unavailable to advocates. The final case I wanted to mention is a case that came down a couple weeks ago from Maryland, the Williams case (Williams v. Wasserman 2001 U.S. Dist. LEXIS 15287 (Md. D.C.. Sept. 27, 2001)). This was also a class action and it was a case involving placement of folks into the community and it was addressing the issue of what is considered the fundamental alteration defense that we talked about before. The Court was looking at whether or not the state''s failure to implements the recommendations of state treatment professionals of folks who had been deemed appropriate for the community if that failure was a violation of Olmstead. In this case the judge said that the state had not violated Olmstead, they talked about how Olmstead requires considering the totality of expenses and programs undertaken by the state when evaluating the fundamental alteration defense and that in the State of Maryland, the state had actually made significant progress in moving folks into the community and that to force them to move additional folks would be a fundamental alteration in the state services to folks with disabilities. So they were deemed not to have violated the ADA''s integration mandate. But that case I think is one we will have to watch carefully because Maryland, the Court noted is really a leader nationally in providing community services and making significant progress on de-institutionalization. If a state has not been as active in community placement, has not provided enough or very much resources for community services, they may not be able to have the same sort of deference and rely on that fundamental alteration defense that Maryland was able to do. One open question I think courts have not addressed that we may want to talk about during questions what happens if a state does not believe a person is appropriate for the community or fails to evaluate a person for community placement altogether? We talked about before that one of the conditions under Olmstead is that treatment professional has to find that that person is appropriate for the community. But there may be situations where the person does not agree with the state treatments professional''s opinion or maybe the state does not do an evaluation of that person. I think there are good arguments to be made that there there would be room for independent assessments or expert witnesses to make contrary allegations that the person is appropriate for the community but as of yet we do not have a lot of case that that helps with that. That is an interesting question to look at. With that I will turn it back to you Jennifer or Elizabeth.
Thanks, Barry. One follow-up question before we go over to Elizabeth. Waiting list that moves at a reasonable pace That is something that you said is going to be continued to be defined in the court?
Right. I mean the Supreme Court did not say what was considered a reasonable pace, and so reasonable is obviously a term that can be open for interpretation. Some argue that other court''s decision under Medicaid which talk about providing Medicaid at reasonable promptness which has been determined to be 90 days may be a standard that people would adopt for this whole issue of reasonable pace for waiting list movement. But at least as far as I know, Elizabeth may know of cases I am not familiar with, there have not been cases interpreting specifically the Supreme Court''s statement of reasonable pace. So it is going to be something that we have to watch carefully.
Good, thanks. Elizabeth over to you. Tell us what is going on, where are the states at? I am sure like a lot of the sites that are out there right now, people are wondering what are the model states? What plan should we be looking at? What are your suggestions?
I wanted to take a take a queue from Barry. He had mentioned that the federal government has issued some guidance specifically to health and human services and what I am going to be talking about as I mentioned a few minutes ago, was a survey that I did of various groups representing DD populations, individuals with mental health needs, individuals with physical disabilities, and others. My survey basically looks at the key components of a plan as set out by the federal government. So I want to start there and echo what Barry said, that the Supreme Court in Olmstead said that a state can defend against an Olmstead complaint by demonstrating that it has a comprehensive effectively working plan for placing individuals with disabilities in the most integrated settings appropriate to their needs and a wait list that moves at a reasonable pace not controlled by the state''s attempt to keep institutions fully populated. The federal agency that has been given control or the responsibility of ensuring that states comply with Olmstead is within Health and Human Services, it is called the Office of Civil Rights. Which I will now start calling OCR. The Office of Civil Rights as well as the Center for Medicare and Medicaid Services who some of you may call HCFA, they changed their name, issued a joint letter to all state Medicaid directors cc-ing it to a variety of different state agency heads, on what they would consider strong recommendations for how a state could comply and develop a comprehensive effectively working plan for placing individuals with disabilities in the most integrated settings. I just want to go over some of the things that they require, because when I go through my survey you will understand why I would have chosen to evaluate state''s progress in certain areas. It should all tie back to what OCR and HCFA or CMS has said should be included in a plan. First, I want to reiterate what Barry said, that HHS and OCR have said in its guidance that Olmstead applies not only to persons already in institutional settings, but also for individuals who are at risk for possible institutionalization, whether it is because of a lack of current community based services that are inadequate, maybe they cycle in and out of institutional settings or they currently have adequate services but they are on a waiting list because those services could end for various reasons. So that is important, that both OCR and a federal district court as Barry said in Makin have said Olmstead applies to at risk populations. Also OCR has said in its guidance that the integration mandate which was the topic of the Olmstead decision also can be found in Section 504. They clarified that Section 504 of the Rehab Act should be interpreted to have an integration mandate as well. So those are two very important things generally. More specifically, they said that a plan should be comprehensive. From an advocates point of view, I think this is very important. When you are looking at your plans, you want to make sure that it is comprehensive and that it includes all populations of individuals with disabilities in any setting. So do not forget nursing facilities, VA hospitals, board and care homes, some assisted living facilities we know are huge and really do not maximize opportunity for interaction with non-disabled peers. There is a definition of integration and inclusion in the ADA and it says maximizing opportunities to interact with non-disabled peers. Children''s residential facilities, ICFMR''s, state hospitals, have a broad definition of what could be considered a segregated setting. You want to look at whether the individual is having a good opportunity to make his or her own decisions and interact in the community. You do not want to forget individuals at risk. Some of the areas that should be specifically included in your plan and I do not often see, are individuals that cycle in and out of hospitals. I know that in the Texas plan they specifically called for a review and identification of individuals who have been in and out of institution at least twice in a two-year period. That is their attempt at recognizing the fact that you cannot just do a one time assessment of a hospital population and assume that you are going to be accessing everybody who may be unnecessarily institutionalized. You want to make sure that your plan includes individuals in homeless shelters, they are certainly at risk. Kids with very good services under their IEPs or individual education plans, but they hit 21 or as a result maybe they are getting Medicaid services which are very comprehensive for the under 21 crowd all of a sudden they hit 22 and all these great services they were receiving in the school or under Medicaid are gone. Well those individuals would certainly be at risk. Your plan would want to include a section on how the state is going to assess individuals who may be at risk because they are leaving the school system. Kids in foster care. Kids leaving juvenile centers or adults leaving detention centers that have mental illness or developmental disabilities, this should be looked at in terms of at risk populations. A comprehensive plan would include housing, transportation, health care, we all know provider shortages are an issue in every state there should be a section on that. Employment could help prevent unnecessary institutionalization. Your plan should be very detailed on how it will look at discharge planning, I will talk about some good ideas around that in a while. It should have a detailed statement of how, what the process that the state will use for assessing individuals to determine what is the most integrated setting appropriate for their needs. It should have a whole section on quality monitoring and follow-up to ensure that the plan is complied with. So that is what advocates should be considering would be an element of a comprehensive plan. Also we know that the plans are supposed to be effectively working. That would imply that the plan is continuously reevaluated for its effectiveness and modified as appropriate. If more services could be created that were not necessarily pegged in the plan, there has to be a system where it can go back and do that. An effectively working plan would necessarily require funding. Because a plan that makes recommendations but does not include resources to fund these recommendations is little more than a wish list. There is some other things that HHS has said in their guidance to states should be included key elements of a plan. That would include stake holder and consumer input into the creation, design and implementation of the plan. Get that, the implementation part is key. A lot of states have had these shell organizations or maybe effective groups for providing input but once the plan was turned over to the governor, the consumer input branch and the stake holder branch was dissolved. That would seem to violate the strong recommendation that stake holders have input into the overall implementation of the plan. OCR, HHS has also said a plan should identify available community integrated resources and support. That would include looking across all populations, all agencies, housing agencies, transportation agencies, and the list that I talked about before. The plan should include an assessment process to identify individuals in institutions who could benefit from a more integrated setting. They did not say this specifically but it would seem that would include at risk because they said that Olmstead does cover at risk. A plan should include identification to changes in community services that would improve availability, quality, and adequacy of services. And clearly you need stake holder input to determine how services can be improved. Consumers are the ones using the services. Quality assurance, improvement in management is a component according to HHS. Provision of informed consent, so most of the plans I have seen have had a whole section on how they will provide informed consent, what kind of education would be provided to individuals so that when they are asked. As Barry said, one of the elements of determining whether the community is the most integrated setting appropriate, is that the individual effected does not oppose community integration. I think that is where provision of informed consent would come in. How do you know whether you oppose community placement if you have lived in an institution for 45 years, all of your friends are in the institution, and it is all you have ever known and somebody asks you "Do you want to move into the community?" In many cases the answer is going to be "no" because they do not know what is available in the community. So an informed consent portion of your plan should look at how can we give individuals options so that they can go out and test the community, feel safe to come back if it is not working. If they do come back, have systems where services will continue to be developed so that there is a second chance. Who should do the training on what types of community services are appropriate? All that needs to be included in your informed consent portion of your plan. OCR also says that a plan should include an identification of existing and new funding mechanisms and existing barriers. A lot of the plans I have seen have done a great job of talking about what the state is currently providing and then what they have done is gone out and done focus groups of consumers and providers and focus groups have created lists of 10 or 20 things in each area of housing transportation, employment, of what they think should happen. That is great. Identification of existing resources and going out to consumers is great. But you cannot forget this important component, which is identification of obstacles to new funding. The last thing they mention is a process for periodically reviewing each individual''s needs in the community and for reassessments of individuals remaining in institutions. So that is key. I have spent a long time on what OCR has said so I want to go quickly over what I found in the survey. Which is that I asked the question which I think is the key question here, it has been over two and a half years since Olmstead was decided, Olmstead was decided June of 1999. And so the key question is have individuals actually been moving out of institutions in higher percentages compared to the years prior to Olmstead? I mean that would appear to be a key question. And less than half, almost half, said that there was a higher percentage of individuals moving out. What you need to know is that of the states that said there was some percentages moving out, they talked about how in the years prior to Olmstead there was nobody moving out. So any movement was going to be an increase. States that mentioned an increase also talked about how it was a result of litigation and that the state had actually been under a court order or a settlement agreement to move people out and so it was not necessarily as a result of Olmstead planning or the Olmstead decision, although they might have in their litigation raised the integration mandate as something the state was violating. I think that is a key thing that you want to keep asking your state are you increasing the percentage of people moving out of institutions if you are not, how are you complying with the civil rights responsibility of the ADA?
Can I ask you, when you go back to the higher percentage, do you have a number there?
Do I have a number?
Do you have it based on states...
Yes, I have. I only had 38 states responding to that question. And out of the 38 states.
You have the individual responses by state?
Not by state. The reason I did that, I will be offering this report, but the reason I did not break it out by state was because I cannot be sure that, this survey as I said was completed by advocates. We did this on purpose, because you all may have seen by the National Conference of State Legislators, I applaud the group for concentrating on Olmstead and realizing that state legislators are going to be key to ensuring that Olmstead is complied with. State legislators are the ones that control funding increases and make statutory changes, I applaud the National Conference of State Legislators. But their report will obviously be focused on great things the states are doing to comply with Olmstead. NAPAS is an advocacy organization we want to speak from the perspective of advocates that individuals are unnecessarily institutional and every year they languish is a year their civil rights are lost. We want to push the states to move faster. So because I could not necessarily be certain that the particular advocate that answered the question had all of the facts, I did not want to make states specifically. So I only really put in numbers and out of the 38 states, 17 states said they had not seen increases, 12 states had seen increases and the rest said they could not determine. So I mean again, the report is just going to have a lot of generalities.
If I am an advocate working in my community where can I go to get that benchmark so when I evaluate as an advocate in my own community, how I can find out that there has been some improvement? Do you have any suggestions for that or is that something that is different state to state.
It might be different state to state. I do not have an idea of how to find that. I know you can I know, for example there is a state of the state report on DD that comes out every year by David Braddock, he talks about percentages of individuals living in DD facilities and increases from year to year. So if you want the state of the state report, you could call NAPAS and I could tell you how to access that. That is one tool. CMS should also keep some data on numbers of people who are receiving Medicaid services in nursing facilities, for example, I am not well equipped to answer that question. Do you have a better answer, Barry?
I did not want to throw you off track. We are starting to come up on the close I want to give people the opportunity to ask some questions. So could you kind of give us a brief summary of what you are finding in the report.
Okay. The most important concern I found in the report was that the main way that states are setting out to comply with the Olmstead decision is to develop plans. When I reviewed these plans, they did not come close in most states, to meeting the principles that I talked about earlier that were recommended by HHS. Consumer input was not as much of a problem as this time last year. But even those states that had consumer input, their worry was, as I said before, that once the plan was sent in, that they would be cut out of any future efforts to review implementation. Also a number of advocates said that states had done a good job of asking for consumer input, but they all met in huge groups and consumers and providers would raise issues and say this is a real concern to us, but then in order to get any kind of consensus, they would have to breakdown in a smaller group and that smaller group would not necessarily reflect the concerns of stakeholders. So while they went out and got consumer input the plan did not necessarily reflect the problems that advocates and consumers had pointed out. Some of the plans, Maryland, South Carolina, are two that pop in my mind had pages and pages of dissents attached with the plan when they submitted it to their governor. Now this is better than nothing. If you do have a plan that gets submitted and you have problems with it go ahead and write your consensus you certainly would want to be on record. The other thing I found out was that plans are not tied to specific resources. They will have great recommendations of ways that the state can remove barriers, but no time frames or specific agencies appointed to actually ask for those changes to be made. One of the best ways you could facilitate your recommendations being implemented is to try to get legislation and state legislator buy in so when you go in and ask for statutory changes they will have made some outward commitment to Olmstead compliance or at least be familiar with what the Olmstead decision is so that your requests are not coming at them from the blue. Most states will have a time frame for plan development. But that is only half the battle you want to try to put in time frames for actual recommendations to be addressed and considered. You want it to not just wait for a plan to be developed before you start asking for some budgetary changes, if you see some good recommendations that have come up, even if the plan is not final you want to be involved immediately with their next appropriation cycle. That was another thing we found, a lot of states are using plans to stall and are not doing any immediate actions to increase services but are waiting for the plans to be developed. The last thing we found, or one of the most important things we found is the Office of Civil Rights, it is important to continue to file complaints on behalf of individuals who you believe are unnecessarily institutionalized. Generally when an individual complaint is filed, in most cases that individual has been moved into the community. The frustration of advocates is that OCR has not taken broader efforts and scrutinized plans that they are developing and saying I do not think this is adequate or that is adequate. We hope OCR will be doing that, and that is something advocates should continue to demand, some kinds of time frame by which OCR will look at all state''s attempts to comply with Olmstead and start having a quantitative measurement of what more they could or should be doing. So those are the main things we found in the report. As far as promising ideas, if you are interested in housing, look at Texas. If you are interested in provider access, look at South Carolina. Maryland thought they did pretty well in employment, North Carolina did pretty well in data collection. Missouri does a great job with informed choice. If any of you are working on the Illinois plan and want to know what plans you should read for good ideas, please call me up and all of the plans I just listed I could e-mail to you or tell you how to get. So continue to work in coalition, continue to put pressure on states and particularly if your states have applied and received real choice grants, I know of you have heard about the real choice grants, states had to submit a very detailed application in order to receive that money. The application included time frames, promised stake holder input, you want to read those applications and make sure that if the state now has the money they are going to be doing all the things they said they did, so that is an important thing for to you do. Get your real choice grant applications. Even if your state did not get the money you also might wanted to get a copy of the grant application because in order to apply for that grant they had to get input from consumers on what they would spend the grant money on. So that kind of consumer input is rare and you can make the argument that that is a great place to start because you have gotten feedback from consumers that this is something that needs to be done and needs to be done quickly, even if it was not actually funded under the real choice money. So remember to review your assessment tools. Like Barry said, assessment is key, it is the first place that states are starting because they want to get a baseline budget amount for what they are talking about when talking about Olmstead compliance. If anybody is working on assessment, they can contact NAPAS, we have a lot of resources about how to make your assessment effective.
Elizabeth let us open it up to take questions. Elizabeth when do you expect your report to be released?
It should be available on our web site by Monday this upcoming Monday and our web site is www.protectionandadvocacy.com.
Hi I am going to be relaying a question from someone else. We will be relaying the question to you shortly. This question comes from Bob in California. His question is he wants to know the definition of community integration to know if it applies to telephone access. Because the FCC has required that the state provide telephone service for people with speech disabilities.
I am going to recommend because we are coming up on the close of our hour I want to get a couple more questions in because that is a FCC related question I am going to recommend that you contact your regional Disability and Business Technical Assistance Center. Thank you for your question but your regional DBTAC should be able to answer that for you. Joan, let us go to our next caller.
Hi. I am from Minnesota, I need the cites to the cases that have interpreted Olmstead.
Okay. Is there a particular case that you are interested in?
Four of them.
The Richard C case was actually went up to the 3rd circuit but it was a non-published opinion so you would want to look at the district court case and that cite is 196 FRD 288. That is a 1999 decision from the District court in Pennsylvania.
We will go ahead ask get the rest of the cites of all of the cases that Barry listed today and we will also post those in the transcript so you can get those from there. Thanks for your question.
Jennifer, the first part of the first gentleman''s question is in a definition of community integration?
Thanks for covering that.
As I said before, the preamble to the regulations again the Department of Justice issued regulations related to the ADA and the preamble says that the most integrated setting is a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.
Thanks, Elizabeth we have time for a couple more quick questions.
This is actually Pam, I''m with Matthew. I wanted to know if you could tell us how to get the real choice grant applications.
Okay. Those have come and gone. Now if your state is not really doing a good job of involving consumers it is quite possible that they applied and got it, but if you want to get a listing of who has gotten the money, the applications were due on July 20th it was announced in the beginning of October and you would go on to www.hcfa.org. And type in "real choice," I think go under Medicaid professional information, type in real choice and you should be able to get names of the states that received that funding.
Thanks for your question. We are coming up at the end of the hour. Fortunately we had a couple of fast talkers with us today, to get in a lot of information in a short amount of time. I am sure that many of you at your sites will have follow-up questions as well. Please either call your regional Disability and Business Technical Assistance Center or you can send me e-mail and I will certainly forward those to Elizabeth and Barry and we can follow-up with those as well. So with that I am going to turn it back to each of you for a brief closing comment. Barry if you want to go first.
Sure, I would like to emphasize how important the Olmstead case is. People have compared it to Brown v Board of Education. I do not think that is an unfair analysis. Because we are talking about segregation, people being deprived of civil rights and the Court has clearly said people who are unjustifiably institutionalized are being deprived of civil rights and the state is violating ADA. This is a critical issue that people need to work in collaboration with their state to see if this can be addressed through policy activities or advocacy activities or if necessary litigation. It is important to watch future court decisions to interpret some of the terms of the Olmstead decision because there are several terms in the decision that we talked about today that are new terms or terms that have not been identified or defined by other courts. So that will be I think the next wave of information that we need to be watching for.
I want to wrap up by mentioning broad policy concerns. I remember that Illinois had done a good job, I understand it was the advocates that put this together of coming up with policy questions and I remember being very impressed with those. So you guys have a jump on this in Illinois. But what P and A''s around the country have have heard, states think Olmstead compliance is about Medicaid waivers. As long as they are expanding Medicaid waivers or finding creative ways of using waiver monies, that is all they need to do to comply with Olmstead. Advocates need to be on guard to mention things like waivers often exclude populations of individuals who are in mental institutions and that the case is far broader than expansion of Medicaid waivers, talking about housing, transportation, employment, all the services that you need. They should all be specifically addressed in your plan. Also, states are doing prioritization, they are determining what populations they will look at first as far as assessments and as far as moving people out and you want to be involved to determine whether your state is doing that kind of prioritization. If they are, what criteria are they using and do they really need to prioritize like that? You again want to look at your assessments tools and make sure they are designed for specific populations, we are talking children, that might have additional issues, individuals with mental health needs would have additional issues, most of the assessments tools I have seen have been specifically related to DD to make you aware. Look at your assessment tool. And then, well, I will stop there.
Thanks to both of you, Barry and Elizabeth you have done a lot of work in this area and so it is great to have the opportunity to hear from two people that have been so involved and to kind of get an idea of what your perspectives are and hopefully short time from now or a few years from now we can have you back to see where we are in this process because we know that even since 1999 this continues to be a complicated issue, so your insight is most valuable to us. I would like to thank all of you at our sites today for joining us for this session. We hope you will be able to join us again next month, November 20th when we look at the ADA related cases before the Supreme Court during the 2001-2002 session. With us we will have Arlene Mayerson, from DREDF and she is going to review some of the disability and ADA related cases. In the event you still have questions about the ADA in general or the Olmstead case or upcoming sessions, please call your regional DBTAC at 800-949-4232. Thanks so much for joining us today. We hope to have you back again next month. Thank you.