Category: Olmstead

We're Reaching Out to Our Friends in the Community To Identify Legislators Who Might Consider Olmstead Plan Legislation

7/27/2017

  * The Americans with Disabilities Act & Olmstead are CIVIL RIGHTS LAWS -- they are often NOT treated like that -- they are often treated as kind of optional -- to do when it is convenient.

  * BUT enforcement for people with disabilities can be very expensive and time consuming.

   * We would love to be successful this first year with legislation, maybe we won't be.

   * BUT we have to continue to work for an easily enforceable burden on the State for a Comprehensive, Effectively Working Olmstead Plan with Measurable Goals -- History has shown that without a Court Order or Statute many States are unlikely to Comply.

   * Currently, the Hickenlooper Administration is refusing to have a Comprehensive, Effectively Working Olmstead Plan with Measureable Goals.

Lois Curtis, one of the original plaintiffs in the 1999 US Supreme Olmstead case holding that unnecessary institutionalization of people with disabilities amounted to discrimination under Title II of the Americans with Disabilities Act (ADA)

Olmstead Compliance & Enforcement Has Been Hugely Problematic Over the Past 18 years -- You Can't Keep Doing The Same Thing & Expect Different Results

7/27/2017

Well we'll tick off what we believe to be the major factors in the really disastrous problems in Olmstead enforcement:

The original 1999 Olmstead decision gave some guidance for States and people with disabilities -- but it has taken a lot of time to flesh that out through: caselaw, US Dept. of Justice Findings Letters, official guidance, etc.
Unfortunately, States -- including Colorado -- routinely ignore ADA/Olmstead caselaw, DOJ Findings Letters, official guidance, etc.
While the Supreme Court seemed to offer a compromise to both States and people with disabilities in the form of a Comprehensive, Effectively Working Olmstead Plan which might serve as a defense to the State against an ADA/Olmstead action -- a whole lot of States including Colorado could not be more resistant.
The Community Living Plan that Colorado did have -- didn't do anything -- it didn't have measurable goals and it didn't have a plan to bring housing and services to scale to meet the needs of people with disabilities to prevent unnecessary institutionalization or homelessness.
The burden has to be on the State, NOT on people with disabilities to prove that the State is in Compliance with Olmstead or has a Comprehensive, Effectively Working Plan with Measureable Goals.
There may be a lot of ways to do this, but probably the most realistic is through state legislation.

Many Disability Advocates Believe Olmstead Laws are the Wave of the Future as State Governors Continue to Fail Us

7/27/2017

After the Supreme Court’s Olmstead decision in 1999, Disability Rights Nebraska began to urge the state to develop an “Olmstead Plan”. For 17 years, our efforts to gain traction on the issue with the Governor’s office, the Department of Health and Human Services, and the Legislature were to no avail.

Last year, Senator Kathy Campbell approached Disability Rights Nebraska with an opportunity to develop the initial language for an Olmstead Plan bill. Senior Staff Attorney Dianne DeLair and Disability Rights Nebraska’s Public Policy Team cooperated with Senator Campbell’s office to produce the final version of LB 1033.

The bill became law on April 18, 2016. The law requires the Nebraska Department of Health & Human Services to “develop a comprehensive, effective working plan for placing qualified persons with disabilities in the most integrated community-based service settings…”

Additionally, LB 1033 created a stakeholder advisory committee to assist in the Olmstead plan’s development.

Nebraska's Olmstead Bill Passes

Rule of Law: Trump Aggressive Defiance of a lot of Laws or Colorado Passive Aggressive Defiance of Olmstead

7/26/2017

Well, none of us have seen anything like Trump before, and that includes certainly berating his own Attorney General for following the Rule of Law and recusing himself from the Russia investigation, I don't know if we are quite at grounds for impeachment yet -- BUT we're getting there.

   With respect to the Hickenlooper Administration they are nothing if not polite, cordial, and passive aggressive when it comes to Olmstead.

   We're really coming up on year 3 of our Olmstead efforts and when I asked a direct question of a top official in the Governor's Office about whether the State had any intention of complying with Olmstead and developing a Comprehensive, Effectively Working Olmstead Plan -- the person responded { paraphrasing]:

"Thanks for reaching out. We're working hard."

   Hmmmm. . . .

   The fact is Colorado is NOT complying with Olmstead or the Americans with Disabilities Act. Unlike Trump, the Hickenlooper Administration has done some good works and is substantially more likable -- BUT the Hickenlooper Administration hasn't reached substantial compliance with Olmstead or the Americans with Disabilities Act.

   In some ways, the Hickenlooper Administration's defiance of the Rule of Law is even more frightening than Trump's.

An Olmstead Plan is Really A Court Compromise Trying to Balance the Interests of States & People with Disabilities

7/15/2017

From the perspective of people with disabilities -- States should already be providing all the housing and services necessary to prevent unnecessary institutionalization and great risk of institutionalization that is inherent in homelessness as a requirement of Title II of the Americans with Disabilities Act (ADA).
In the US Supreme Court's 1999 Olmstead decision --- the Court cut the States a break and basically said that if the States have:

Comprehensive
Effective Working Plans

to provide housing and services in the community for people with disabilities, then that is a defense to an ADA claim.
Since then, subsequent caselaw has required that such "Olmstead Plans" have specific measurable goals. Additionally, US Department of Justice guidance has indicated that housing and services need to be brought to scale to meet the need.
   Well, the thing is most States don't have compliant plans -- Colorado doesn't. Minnesota does, but only after a Court Order.
   And now here we are in the middle of a federal Healthcare debate, and as painful and ridiculous as it is -- it is NOT a legal excuse Not to have a compliant Olmstead Plan.
When Olmstead/Olmstead Plans are treated as Ad Hoc it never gets done or it doesn't get done right -- this isn't a one off exercise -- It's A Continuing Process.
   Because It is A Continuing Process -- with Continuous Improvement & Modification Built In (or should be) -- we don't need to fear or loathe it.

Medicaid & Olmstead: The Good, The Bad, & The Ugly

7/13/2017

The issue of Medicaid & State Olmstead Compliance is not a new one.
Often it has come up in the context of State obligations to fund housing or services for people with disabilities when that is not covered by Medicaid.
The US Dept. of Justice Interpretative Guidance on the Americans with Disabilities Act and the US Supreme Court's 1999 Olmstead decision make clear that a State's obligations under Olmstead are NOT limited by what is covered by the Medicaid Program.
In general, housing has never been covered by Medicaid and States are legally obligated to provide housing to people with disabilities to prevent institutionalization and the great risk of institutionalization inherent in homeless.
  With respect to the current Healthcare debate at the Federal Level, this country has been trying to deal with healthcare for decades and it is a controversial issue -- there is nothing in the Americans with Disabilities Act or Olmstead decision that says a radical change in Medicaid is grounds for failing to comply with Title II of the ADA or the Olmstead decision.
   If a radical change in Medicaid were to happen after specific measurable goals were set in an Olmstead Plan, that can be taken into account with respect to "reasonableness" and various other factors going to the issue of reasonableness.
   The Olmstead Plan really comes in as a recognition by the US Supreme Court and subsequent courts that States can't provide those Housing units and Services overnight.
     In return for not requiring States to come into immediate compliance with Housing and Services, there are some requirements --which Colorado BTW isn't complying with -- an Olmstead Plan which is:

Comprehensive
Effectively Working
With Specific Measurable Goals
That will bring Housing & Services to Scale to Meet the Needs of People with Disabilities to Prevent Unnecessary Institutionalization and the Great Risk of Institutionalization Inherent in Homelessness

Additionally, people with disabilities need to be "included" [hence, inclusion -- or "Nothing About Us, Without Us"] in the decision-making process for the "Olmstead Plan."

Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C.

7. May the ADA and Olmstead require states to provide additional services, or services to additional individuals, than are provided for in their Medicaid programs?

A: A state’s obligations under the ADA are independent from the requirements of the Medicaid program.14 Providing services beyond what a state currently provides under Medicaid may not cause a fundamental alteration, and the ADA may require states to provide those services, under certain circumstances. For example, the fact that a state is permitted to “cap” the number of individuals it serves in a particular waiver program under the Medicaid Act does not exempt the state from serving additional people in the community to comply with the ADA or other laws.1

More DOJ Guidance

If We Can Do A Statewide Plan to Improve Behavioral Health Outcomes for People In the Criminal Justice System -- We Can Do An Olmstead Plan

7/11/2017

We Would Like to See A Statewide Behavioral Health/Criminal Justice Plan with Significant Inclusion of People with Lived Experience with Mental Illness/Substance Issues & the Justice System and Included in a Statewide Olmstead Plan

    In a July 5, 2017, letter from Governor Hickenlooper to "Task Force Members" shared by the Equitas Foundation, Gov. Hickenlooper asked the members to make recommendations for a statewide strategic plan to improve behavioral health outcomes for individuals involved in our criminal justice system.

As some may recall one of our big objections to Colorado's Community Living Plan & why we maintained it wasn't "comprehensive" was that it did not include Criminal Justice.

       The State isn't tackling mental illness and criminal justice through the lens of Olmstead but it's tackling it in its "own way." There has been a lot of resistance to considering Criminal Justice through an Olmstead Lens which has been very frustrating to us because we don't necessarily have a problem with the other Lens.

   Our point is not so much that the other Lens are de-legitimate as the Olmstead Lens is legitimate and in fact the Law.

     Again interestingly, the State is wanting to "set reasonable and measurable performance and outcome metrics."   Well, of course, we've been screaming for that in an Olmstead Plan--specific & measurable goals. as required by law

Maybe we really can get that Olmstead Plan Colorado desperately needs with "reasonable and measurable performance and outcome metrics."

One thing we would note, "metrics" is not a common word and most people don't know what it means. Most people know what "specific measurable goals" are and that is the language of Olmstead caselaw so we prefer it.

Ideas for Inclusion

Seek volunteer stakeholders from people w/ MH or Substance Issues who are currently in community corrections;
Consider "skyping in" or telephone conferencing in people who are currently incarcerated w/ MH or Substance issues to participate as regular stakeholders.

Why We Are Throwing Down the Gauntlet For A Comprehensive, Effectively, Working Olmstead Plan with Measurable Goals

7/9/2017

Well, there's the Law -- the Americans with Disabilities Act (ADA) and the 1999 US Supreme Court Olmstead decision finding that unnecessary institutionalization of people with disabilities amounts to discrimination under the ADA.
AND it is not like Colorado and the Hickenlooper Administration don't do good works -- because they certainly do.
BUT those good works are not a substitute for State compliance with Olmstead. Why not?
Well it really has to do with three things:

The Olmstead Decision itself -- So a "comprehensive," "effectively working" Olmstead Plan with specific measurable goals is a State's DEFENSE against claims it is violating the ADA by not providing sufficient housing and services to prevent the unnecessary institutionalization of people with disabilities.
The Magnitude & Complexity of the Problems
Government Accountability

Further, one of the things that has made this so difficult is that Olmstead Planning is NOT incorporated into normal Colorado State Government functions -- and previously it has been treated as an Ad Hoc endeavor producing a Community Living Plan 3 years ago that is all but meaningless.

So why go to all that trouble for something that doesn't really do anything?

Of course, I think State resistance to an Olmstead Plan with specific measurable goals and on-going modification --- is that it really would do something.

AND that's exactly why we have to have it -- it could really do something by making concrete plans with measurable goals to address our complex problems of great magnitude (including Criminal Justice) while including people with disabilities in the decision-making process.

In the end, it is bringing housing and services to scale to meet the needs of people with disabilities to avoid unnecessary institutionalization and the great risk of institutionalization inherent in homelessness.

Trying To Nip In the Bud: Colorado State Government's Illegal Excuses for Failing to have a Comprehensive, Effectively Working Olmstead Plan with Measurable Goals

7/7/2017

Well, we've heard a lot of the excuses from the State for failing to comply with Olmstead:

We're working on other important things, some of which are extremely non-inclusive even though they directly affect people with mental illness;
We're Busy;
We're going to "pretend" to work with you, but really we're just going to STONEWALL

Unfortunately, the recent controversy with Medicaid @ the Federal Level might give someone the bright idea -- that we can't possibly do an Olmstead Plan now because of the uncertainty.

Let Us Disabuse the State and Anyone Else of that idea.
That is not anymore a legal excuse to fail to comply with the law than the State's other excuses were.

So we're hoping come July 31 and the Olmstead Stakeholder meeting with the State we are NOT presented with another FIASCO.

"We Want to Listen to People & See What Problems They Have With Olmstead"

6/6/2017

   The above is a paraphrase from a very high official with the State.

   The first thing that comes to mind is that most "people" don't have any problems with Olmstead --- It is the State that has problems with Olmstead.

   What most people have a problem with is the State's failure to comply with Olmstead, albeit with some highly beneficial legislative action that "counts" in the direction of Olmstead.

      We knew when we first heard the roll-out of Colorado's 2014 "Community Living Plan" -- It Was NOT Legally Sufficient in large measure because it did not include criminal justice or provide specific measurable goals.

   However, it wasn't as clear then as it is now. Subsequent cases, notably the Minnesota court-ordered Olmstead Plan with specific measurable goals have made it abundantly clear that Colorado is NOT complying with Olmstead.

   Further, the State is focused on "targeted" and "feasible" actions -- once again that's not bad -- it's probably good -- However, it doesn't sound like the legally required Olmstead Compliance people with mental illness who are incarcerated, homeless, or institutionalized are entitled to.

   Particularly problematic is Colorado Medicaid's poorly designed Mental Health Program that does not make available Assertive Community Treatment where reasonably medically necessary even though it is evidenced based treatment and such failure contributes to incarceration and homelessness.

   If someone would have told us 2 1/2 years ago, the Hickenlooper Administration would have acted in such bad faith on the issue of Assertive Community Treatment and refused to even discuss it -- we would not have believed it.

AND yet, now 2 1/2 years later from our perspective -- it has been extreme bad faith AND an extremely mixed bag of good works.

   So the good works do help with respect to Olmstead Compliance. They do NOT get the State to Substantial Olmstead Compliance or a Comprehensive, Effectively Working Olmstead Plan -- at least in Colorado's case, and the case of most States.

   So WHY NOT? So long as we are doing good works isn't that just as good?

We have a problem of great magnitude involving thousands and thousands of people with disabilities who lack housing and services the State is legally required to provide.

  We (the State, people with disabilities, advocates, the public) need to know:

How many people with disabilities are incarcerated in prisons and upon release need housing and services to successfully remain in the community.
How many people with disabilities are incarcerated in jails and upon release need housing and services to successfully remain in the community.
How many people with disabilities are in nursing homes that desire to live in the community and what housing and services would they need to successfully remain in the community.
How many people with disabilities are in other institutional settings that desire to live in the community and what housing and services would they need to successfully remain in the community.
How many people with disabilities are at great risk of institutionalization due to homelessness and desire housing and/or services -- what do they need.

So the question isn't really, what problems do people have with Olmstead.

Rather, what problems does the Hickenlooper Administration have with Olmstead?

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Val's Blog

We're Reaching Out to Our Friends in the Community To Identify Legislators Who Might Consider Olmstead Plan Legislation

Olmstead Compliance & Enforcement Has Been Hugely Problematic Over the Past 18 years -- You Can't Keep Doing The Same Thing & Expect Different Results

Many Disability Advocates Believe Olmstead Laws are the Wave of the Future as State Governors Continue to Fail Us

Rule of Law: Trump Aggressive Defiance of a lot of Laws or Colorado Passive Aggressive Defiance of Olmstead

An Olmstead Plan is Really A Court Compromise Trying to Balance the Interests of States & People with Disabilities

Medicaid & Olmstead: The Good, The Bad, & The Ugly

Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C.

See Also:

Housing -- A Conundrum for the States -- A Nightmare for People with Mental Illness

If We Can Do A Statewide Plan to Improve Behavioral Health Outcomes for People In the Criminal Justice System -- We Can Do An Olmstead Plan

Why We Are Throwing Down the Gauntlet For A Comprehensive, Effectively, Working Olmstead Plan with Measurable Goals

Trying To Nip In the Bud: Colorado State Government's Illegal Excuses for Failing to have a Comprehensive, Effectively Working Olmstead Plan with Measurable Goals

"We Want to Listen to People & See What Problems They Have With Olmstead"

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​ ​Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. ​

​See Also: Housing -- A Conundrum for the States -- A Nightmare for People with Mental Illness

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Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C.

See Also:

Housing -- A Conundrum for the States -- A Nightmare for People with Mental Illness