Fw: DOJ and Enforcement of Integration Mandate in ADA/Olmstead

[Guest guest]

FYI

Ellen

Ellen Garber Bronfeld

egskb@...

DOJ and Enforcement of Integration Mandate in ADA/Olmstead.

stevegoldada@...

DOJ and Enforcement of Integration Mandate in ADA/Olmstead.

Information Bulletin # 334 (7/2011).

In recognition of the 12th anniversary of the Supreme Court's Olmstead

decision, the United States Department of Justice issued an extremely

important and comprehensive " Statement on Enforcement of the

Integration Mandate " of the ADA and Olmstead.

This is DOJ's " technical assistance guide. " All advocates should download

it and use it in your advocacy efforts. Quote it in your briefs in Court.

Quote it in your meetings with government officials. Cite it in your

letters to the editor and opinion editorials. This document represents the

official position of the highest law enforcement agency in the country.

http://www.ada.gov/olmstead/q & a_olmstead.htm

This Information Bulletin is intended only to wet your appetite. Please

read the entire document. We'll summarily quote as much as possible. In the

original, there are 18 questions. We've added (arbitrarily) emphases.

DOJ stated: The " goal of the integration mandate to provide

individuals with disabilities opportunities to live their lives like

individuals without disability has yet to be fully realized. Many people

who could and want to live, work and receive services in integrated

settings are still waiting for the promise of Olmstead to be fulfilled. "

1. What is the most integrated setting?

" Integrated settings are those that provide opportunities to live, work,

and receive services in the greater community, like individuals without

disabilities. Integrated settings are located in mainstream society; offer

access to community activities and opportunities at times, frequencies and

with persons of an individual's choosing; provide the opportunity to

interact with nondisabled persons to the fullest extent possible.

Segregated settings include, but are not limited to: congregate settings

populated exclusively or primarily with individuals with disabilities. "

2. When is the ADA's integration mandate implicated?

Anytime a " public entity administers its programs in a manner that results

in unjustified segregation " whether by operating segregating programs, or

financing them in private facilities, or " funding choices or service

implementation practices that promotes or relies upon the segregation in

private facilities or programs. "

3. What factors are relevant in determining whether an individual does not

oppose an integrated setting?

" Public entities must take affirmative steps to remedy this history of

segregation and prejudice in order to insure that individuals have an

opportunity to make an informed choice. Such steps include providing

information about the benefits of integrated settings, facilitating visits

in such settings, and offering opportunities to meet with individuals with

disabilities living in integrated settings.

4. Does ADA apply to persons at serious risk of segregation?

" Yes. People need not wait unit the harm of institutionalization or

segregation occurs or is imminent. " Persons can show such risk " if a

public entity's failure to provide community services or its cut to such

services will likely cause a decline in health, safety, or welfare that

would lead to the individual's eventual placement in an institution or

segregation. "

5. May the ADA require a State to provide additional services than are

provided in their Medicaid program?

" A state's obligations under the ADA are independent from the

requirements of the Medicaid program. The ADA may require states to

provide services beyond what a state currently provides under Medicaid. "

" Caps do not exempt state from serving additional people in the community

by seeking a modification of a waiver to remove the cap. "

6. Can budget cuts violate the ADA?

" Yes, budgets cuts can violate ADA when significant funding cuts to

community services create a risk of institutionalization or segregation.

In making budget cuts, public entities have a duty to take all reasonable

steps to avoid placing individuals at risk of institutionalization or

segregation including making exceptions to the service reductions or to

provide alternative services to individuals who would be forced into

institutions as a result of such cuts. "

7. What budgetary resources are relevant?

" All money the public entity allots, spends, receives, or could receive if

it applied for available federal funding to provide services. All

relevant costs, not simply those funded by the single agency that operates

or funds the segregated or integrated settings. "

8. What about an Olmstead Plan?

It must do more than provide vague assurances of future. Must contain

concrete and reliable commitments to expand integrated opportunities.

Must include commitments for each group of persons who are unnecessarily

segregated. Must address the needless segregation of the group at issue in

the case.

9. What about budgetary shortages?

" Even in times of budgetary constraints, public entities can often

reasonably modify their programs by re-allocating funding from expensive

segregated settings to cost-effective integrated settings. Whether the

public entity has sought additional federal resources available to support

the provision of services in integrated settings, such as Medicaid, MFP

and federal housing vouchers.

Steve Gold, The Disability Odyssey continues

Back issues of other Information Bulletins are available online at

http://www.stevegoldada.com

with a searchable Archive at this site divided into different subjects.

As of August, 2010, Information Bulletins will also be posted on my blog

located at http://stevegoldada.blogspot.com/

To contact Steve Gold directly, write to stevegoldada@... or call

215-627-7100.

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