Missouri Advocates' Proposed Olmstead Plan
What is the Olmstead Supreme Court decision? How does it affect state citizens with disabilities?
The Olmstead decision interpreted Title II of the Americans with Disabilities Act (ADA) and its implementing regulation, which oblige States to administer their services, programs, and activities "in the most integrated setting appropriate to the needs of qualified individuals with disabilities." (28 CFR 35.130(d)).
In doing so, the Supreme Court answered the fundamental question of whether it is discrimination to deny people with disabilities services in the most integrated setting appropriate. The Court stated directly that "Unjustified isolation . . . is properly regarded as discrimination based on disability." It observed that (a) "institutional 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 (b) "confinement 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."
The Court suggests that a State could establish compliance with Title II of the ADA if it demonstrates that it has:
a comprehensive, effectively working plan for placing qualified persons with disabilities in less restrictive settings, and a waiting list that moves at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated.
This plan is designed to demonstrate and implement compliance with Title II of the ADA.
HHS Principle: Develop and implement a comprehensive, effectively working plan (or plans) for providing services to eligible individuals with disabilities in more integrated, community-based settings.
State departments, divisions and agencies affected by the Olmstead decision with their role in plan development and implementation:
Acknowledgement: List all interested parties who participated and contributed to Olmstead plan development.
HHS Principle: Provide an opportunity for interested persons, including individuals with disabilities and their representatives, to be integral participants in plan development and follow-up.
Certification: Statement Assuring Civil Rights Compliance e.g., Governor's Letter or Governor's Executive Order plus signed ADA pledge.
While many barriers to community integration will require changes in legislation or regulations, there are five important steps that must be taken immediately in order to move people with disabilities out of institutions into the community using existing community services and supports.
Goal 1: The state must identify people in institutions who want to move to the community and identify what services and supports they need to do so.
HHS Principle: Take steps to prevent or correct current and future unjustified institutionalization of individuals with disabilities.
A. The state should contract with advocacy groups such as Centers for Independent Living, People First, AARP, etc. to develop and run Olmstead Leadership Academies for training state and provider staff including: Divisions of Aging, MR/DD, Comprehensive Psychiatric Services caseworkers, home health agencies, Area Agencies on Aging, and hospital discharge planners on independent living, most integrated setting and community options.
B. Each agency performs a needs assessment for each current resident with disabilities and identifies who wants to move to the community and what is needed to live in the community.
1) Individual assessments should include:
identification of the assessment team, and their qualifications. Assessments should be conducted by qualified treating professionals who specifically consider such factors as the array of services an individual needs, the types of services that could be provided in the community, and any reasonable accommodations that might be required to enable the individual to benefit from particular services
at least two face-to-face consultations with the individual who is being assessed for appropriateness for community placement. These consultations should identify the specific interests, goals, likes and dislikes and support needs of the individual which may factor into whether community placement is the most appropriate setting for the individual. any family, friends or advocates chosen by the individual to be present.
1. Each agency identifies those individuals with disabilities who would be eligible to be served in more integrated community-based settings. 2. Each agency identifies one staff member to coordinate transition for each individual moving to a more-integrated setting. 3. Each agency compiles a list of alternative services currently available in the community within a 60 mile radius of each town with a population of 5,000.
Division of State schools will inform parents and their families of community options. Division of Sheltered Workshops with Vocational Rehabilitation will inform disabled workers of their community options.
Goal 2: People who have been identified as wanting to move out of an institution into the community must be transitioned to the most integrated setting at a reasonable pace.
A. Each agency provides all eligible individuals Informed Choice Booklets explaining their:
1. rights to integrated community-based services,
HHS Principle: Afford individuals with disabilities and their families the opportunity to make informed choices regarding how their needs can best be met in community or institutional settings.
B. Each agency will provide the following to assure a smooth transition:
1. Each individual will be provided adequate funding and supports to assure a smooth transition from institutional to community-based services.(e.g. First month's deposit and rent for community-based housing when the nursing home takes SSI/SSDI/pension checks to pay for the prior month's care.)
2. Each individual may request a temporary six-month hold on theirÝfacility slot at the time of initial community placement.
3. Each individual is allowed preplacement home visits and overnights.
4. Each individual may request pre-service training for community support staff - prior to actual placement - on individual service needs.
5. Each individual must be provided a choice of alternative placements if the initial placement is discovered not to be appropriate during the first 6 months and at any time thereafter based on evidence of inadequate services or harm
6. If a school age individual is transitioning an IEP should be in place prior to the move.
C. Any individual who enters an institution after July 1, 2000 shall be informed of community integrated options prior to institutional placement.
D. Each individual will be reassessed each three months per Medicaid regulations.
E. Each agency informs all eligible individuals with disabilities receiving services of their rights to due process with clearly written appeals steps to appeal any eligibility decisions those individuals consider to be adverse to their wishes. (DUE PROCESS RIGHTS AND GRIEVANCE PROCEDURES SHOULD APPLY TO ALL GOALS AND ACTIVITIES OF THE OLMSTEAD PLAN)
1) Each individual with a disability has the right to appeal any decision regarding the setting of service delivery.
2) Each individual has the right to a second opinion from a "treating professional" of their choice.
3) Each individual has the right to refuse community-based services.
Goal 3: The state must "Open another door": Before any new person enters a NF, ICF/MR TBI or Mental Institution, that person must talk to someone who knows independent living and the options available in the community and talk about what that person would need to live in the community so that the person can make an informed choice between institutional and community placement.
The state will add to the NF, ICF/MR, TBI, state school, sheltered workshop and mental institution eligibility process requirements that a person must talk to an independent living advocate, (including CILS, AARP, People First and other people with disabilities and all advocacy groups), before being placed in an institution. These groups and individuals will also talk to individuals before hospital discharge planners make decisions about where people go after they leave the hospital.
Goal 4: Money shall follow the person whether he or she chooses to go into an institution or live in the community.
The Division of Medical Services shall amend its rules to allow Medicaid dollars to follow a person who is Medicaid eligible to whichever residential or community option that person chooses.
Goal 5: Each department director shall monitor all department activities assuring that ADA implementation procedures are put into practice in the spirit and letter of the law. recognizing that segregation is discrimination.
HHS Principle: ake steps to ensure that quality assurance, quality improvement and sound management support implementation of the plan.
These long-term goals shall be implemented to remove barriers to community living. These goals may require legislative changes.
HHS Principle: Ensure the Availability of Community-Integrated Services
Goal 1: People in institutions shall be able to save their SSI, SSDI or pension checks in order to have income to cover transitional costs including the first month's expenses in the community, for example rent deposit, utilities, pots and pans, furniture, etc.
Goal 2: Medicaid income and asset eligibility requirements must be expanded in order to provide necessary community supports to individuals who are not currently Medicaid eligible but who are too poor to pay for private attendant or support services.
Goal 3: Medicaid services and eligibility between institutional settings and community settings must be comparable. Services and products provided for in NF, ICF/MR, TBI and mental facilities must also be covered in the community. Income eligibility and spousal impoverishment rules that apply to the institutions must also apply to community placements.
Goal 4: Accessible, affordable housing must be made available. All available resources such as CDBGs in cooperation with the Department of Economic Development, HUD set asides, and HOYO guidelines shall be used.
Goal 5: Provide additional state subsidy to existing public transportation systems such as OATS buses to allow services for all persons with disabilities regardless of age.
Goal 6: A new network of supports must be developed for people with disabilities, such as people with traumatic brain injury and multiple diagnosis's, who fall between the cracks in the current system of community services.
Goal 7: "Provider" issues must be resolved with increased pay for attendants, increased consumer control options, and clarification that the Nurse Practices Act allows personal attendants to assist with tasks such as taking medications, ostomies and wound care.
Goal 8: Guardianship and Conservator laws, (SUGGESTED CHANGE: Assessment team may overrule guardian when the individual's choice of community-based services conflicts with the institutional choice of the guardian/conservator. All guardians and conservators must reveal all potential financial conflicts of interest, e.g., part-ownership of nursing home.
Goal 9: Change state and community infrastructure to stop segregation: Transition state employees to provide community-based services instead of facility-based services without loss of state benefits. Transition state facilities from purely residential to community resource centers, recreation centers, or low-income apartments.