DOCKET OF CASES RELATED TO

ACCESS TO COMMUNITY BASED SERVICES FOR PEOPLE WITH DISABILITIES

 

Prepared by Elizabeth Priaulx, J.D., 

National Association of Protection and Advocacy Systems

September 2004

 

Updates Since The Last Olmstead Coordinators Docket Are Shaded For Easy Reference

 

TABLE OF CONTENTS

 

I.          Background on Federal Laws Referred to In the Docket

 

a.         The Americans with Disabilities Act of 1990

 

b.         The Social Security Act

 

c.         The Rehabilitation Act of 1973

 

d.         The Fourteenth Amendment of The U.S. Constitution

 

II.        Cases with ADA Integration Mandate Claims on Behalf of Individual(s) with A Diagnosis or History of Mental Illness

 

III.       Discrimination Against Individuals with Mental Health Needs That Relate To Access To The Community But Don=t Specifically Include an ADA Integration Mandate Claim

 

a.           Discrimination in Jails and Prisons

 

b.         Discrimination in Housing

 

c          Other Forms of Discrimination

 

d          Failure to Enforce Advance Directives

 

IV.       Cases with ADA Integration Mandate Claims on Behalf of Individual(s) with Developmental Disabilities  


 

I.          Background on The Federal Laws Referred To In this Docket

 

The United States Supreme Court=s decision in Olmstead v L.C. makes it clear that unnecessary institutionalization of persons with disabilities is discrimination and is prohibited by the Americans with Disabilities Act (ADA).  Following this ruling, people with disabilities and civil rights advocates have undertaken a number of activities to ensure the decision is realized in all our nations communities.

 

(1)        The Americans with Disabilities Act - Title II provides that: 

 

"[N]o qualified individual with disabilities shall, by reason of such disability, be excluded from participation or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity."  42 U.S.C. ' 12132. 

 

The Congress mandated the U.S. Department of Justice to adopt regulations that implement this broad non-discrimination provision.  The Department of Justice issued the following regulation, commonly referred to as Athe integration mandate@:

 

AA public entity shall administer services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.@ 28 C.F.R. ' 35.130(d).

 

It is this regulation that was the subject of the Olmstead decision and it is this provision and regulation that the U.S. Supreme Court refers to when it states that the ADA prohibits unnecessary institutionalization of people with disabilities.  It is also important to note that in issuing the integration mandate regulation, the Department of Justice, extends to state and local governments the non-discrimination provisions of Section 504 of the Rehabilitation Act of 1973, at 29 U.S.C. ' 794.

 

(2)                    Title XIX of the Social Security Act, -  42 U.S.C. ' 1396 et seq.   Authorizes states to:

 

Establish medical assistance  programs for low income individuals who meet certain eligibility requirements.  These medical assistance programs (Medicaid) are jointly funded by the federal and state governments. 

 

The federal Medicaid statute includes a list of services that a state could offer under its Medicaid program.  As a condition of participating in the federal Medicaid program, states must submit to the U.S. Department of Heath and Human Services a state Medicaid plan clearly stating which of those possible services the state will cover in its Medicaid program.  Some Medicaid services are federally mandated and must be included in a state plan, while other services are optional. 42 U.S.C. '' 1396a(a) and d(a).  However, once a state agrees to provide a service in its plan, whether mandatory or optional, it is required to deliver those services in a manner that meets certain federal requirements.


 

The failure of states to meet these requirements often results in lack of access to community services and supports and becomes the subject of litigation.  Below are summaries of the most common federal Medicaid requirements that are at issue in many of the claims in this docket:

 

(a) The Reasonable Promptness Requirement - Aa state must provide that all individuals wishing to make application for medical assistance under the plan shall have an opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals.@ [ 42 U.S.C. ' 1396a(a)(8)] 

 

The Department of Health and Human Services has published regulations to explain the meaning of this statutory requirement, including:

 

1) The state agency "must establish time standards for determining eligibility and inform the applicant of what they are.  These standards may not exceed ... [n]inety days for applicants who apply for Medicaid on the basis of disability."  42 C.F.R. ' 435.911

 

2)  "The agency must B (a) Furnish Medicaid promptly to recipients without any delay caused by the agency=s administrative procedures; [and] (b) Continue to furnish Medicaid regularly to all eligible individuals until they are found to be ineligible."  42 C.F.R. ' 435.930.

 

(b) The AFreedom of Choice@ requirement - Aan individual eligible for home and community based services shall be able to freely choose such services provided in her home as an alternative to institutional services.  42 U.S.C. ' 1396n(c)(2)(C) and (d)(2)(C). 

 

(c) The Aamount, duration and scope@ requirements -

 

(d) The Pre-Admission Screening and Annual Resident Review, (APASARR@) requirement was designed to prevent inappropriate placement of people with mental disabilities in Medicaid-certified nursing facilities pursuant to Title 19 of the Omnibus Budget Reconciliation Act of 1987, also known as the Nursing Home Reform Act (ANHRA@  42 U.S.C. ' 1396r et seq.)  

 

The PASARR provision requires states, using independent contractors, to conduct preadmission screening and annual resident reviews of all nursing home applicants and residents suspected of having serious mental illness (excluding dementia), mental retardation or a related disorder.  PASARR is a mandatory part of the Medicaid program and states must comply with all PASARR requirements.   Moreover, the PASARR requirement attaches to the Afacility@ not individuals, therefore, PASARR requirements apply to all nursing facility applicants, not just those that are Medicaid eligible.

 

The purpose of the PASARR Ascreen@ is to prevent unnecessary institutionalization of a person with mental retardation or mental illness in a nursing facility, if that individual can obtain appropriate Medicaid services in the community.  Specifically, PASARR states that a Medicaid can not fund a nursing facility placement for admission of  any new resident who is mentally ill or mentally retarded unless the state has determined, before admission, that the prospective resident requires the level of services provided by the facility and needs to live in a nursing facility rather than in the community.   If the PASARR review determines that a resident does not require nursing facility services, but instead requires services in a non-institutional setting, the state has a mandatory duty to provide or arrange for the provision of these specialized services.

 

(3)        Section 504 of the Rehabilitation Act of 1973 - .  29 U.S.C. ' 794(a) 45 C.F.R. '84.4(a), (b)(2)   Prohibits discrimination Against persons with disabilities and requires that disability programs that receive federal assistance must provide services in the most integrated setting appropriate to the person's needs. 

 

On July 25, 2000, the U.S. Department of Health and Human Services issued the following guidance states about the relationship between Olmstead v. L.C. and Section 504 of the Rehabilitation Act of 1973 (Section 504):

 

Section 504, which was enacted some seventeen years before the ADA, prohibits discrimination on the basis of disability by entities which receive Federal funding.  Section 504 and the ADA use the same definition of disability.  Title II of the ADA extends Section 504's prohibition of discrimination in Federally assisted programs to all activities of State governments, including those that do not receive Federal financial assistance.  Although the Olmstead decision interpreted the ADA, unjustified segregation by a Federally funded program would also constitute disability discrimination under Section 504.  A State program receiving Federal funds must comply with both Section 504 and title II of the ADA.

 

(4)        The 14th Amendment of The United States Constitution B 42 U.S.C. Section 1983 - The Due Process Clause requires that: .  .  . 

 

[N]or shall any state deprive any person of life, liberty, or property, without due process of law.  . For the purposes of this docket, the 14th Amendment claim is that individuals with disabilities, by being confined in state psychiatric hospitals against their wills, are being denied the less restrictive community-based residential placements that are appropriate for their proper care or treatment in conditions that damage their mental health, and are thus denied a liberty interest.

 

II.        Cases with ADA Integration Mandate Claims on Behalf of Individual(s) with A Diagnosis or History of Mental Illness

 

1.  (AL) Case Name: Wyatt v. Sawyer (originally filed as Wyatt v. Stickney) (D. Ala. 2000).

 

Summary: In June 2000, the court approved a three year settlement agreement in this historic case seeking to protect the rights of people in Alabama=s mental health and mental retardation institutions.  The settlement required that Alabama Department of Mental Health and Mental Retardation (DMH/MR): develop additional community‑based services for people leaving state institutions; expand protection of rights for people in state hospitals; enhance agency oversight to ensure that clients in DMH/MR facilities and contracted community programs are safe and secure; and develop a community education plan to educate the public about mental illness and mental retardation, including the needs and rights of those served by DMH/MR. In December 2003, the court officially ended all oversight of the settlement ruling that the state had met the obligations of the settlement.

***

 

2.  (CA) Case Name: Emily Q. v. Bonta (C.D. Cal. 1998).

 

Summary: District Court ruled that states must provide therapeutic behavioral health services to children receiving EPSDT services under Medicaid, such as one-on-one aides in the home, case management and other intensive community-based services found to be medically necessary.  As a result of the ruling, the state developed a better system for providing information to families about the availability of these services, part of this new notice system requires the state to provide notice to all families being considered for institutional placement that therapeutic behavioral services are  available under EPSDT.  The state also started a training program for county workers on what the services are and the procedures families must follow to access these services.  Additionally, the court ordered that state to conduct a special assessment of 135 young people in two state hospitals to see who could be discharged if they had access to therapeutic behavioral services.

***

 

3. (CA) Case Name:  Black v. Department of Mental Health (Cal. Ct of Appeals 2000)

 

Summary:  Administrator of estate of an individual with chronic mental illness sued the California department of mental health for violation of the integration mandate.  The state had transferred the individual from a state hospital to a more integrated community setting.  The individual died in the community setting.  The administrator argued that the state inappropriately transferred the individual to the community in violation of the integration mandate.  The judge ruled that: (1) State did not violate ADA's integration mandate when it transferred patient to a community care setting, since a doctor had determined that the individual could receive services in the community, and because there were no other placement alternatives available, and (2) since the Olmstead decision does not place a standard of care upon states, alleged inadequate provision of services to an individual, following his transfer to the community, did not violate integration mandate.

***

  

4. (CA) Case Name:    Katie A v. California (D. Cal 2003).

 

Summary: Class action alleging that the California child welfare agency failed to assess mental health needs among the 50,000 foster children in its care and that, once children with emotional and behavioral impairments were identified, they received few services. Instead, they bounced between foster placements and group homes until their worsening disabilities made them Aunplaceable@ and they were consigned to institutions, in violation of the ADA Integration Mandate, the Medicaid Act, and various state laws.

 

The county of Los Angeles agreed to a settlement requiring the county to immediately close the MacLaren Children=s Center, a 150-bed children=s shelter that has been rocked with scandal. It has agreed to offer intensive, family-based Awraparound@ care to children with

mental, behavioral or emotional disorders, using flexible funding to pay for a wide

range of services that are individually designed to meet the needs of each child and

family.  The settlement commits the county to meet a set of objectives for children who

are in or at risk of entering foster care, including:

 

$ identifying children=s mental health needs and promptly providing individualized

services to them as necessary, either in their own home, in a family setting or in the

most homelike setting appropriate to their needs;

 

$ providing care and services to prevent children=s removal from their families or,

when removal is necessary, to meet children=s needs for safety, permanence and

stability in their placement and facilitate reunification with their family; and

 

$ ensuring that the care and services foster children receive are consistent with good

child welfare and mental health practice and requirements of federal and state law.

***

 

5.  (DE) Case Name: Doe v. Sylvester (D. Del. 2000).

 

Summary: Action for injunctive relief arguing that the state=s failure to assure that appropriate modifications are provided in the state hospital (interpreter services) and the community (light smoke detection, flashing doorbell, TDD) violates the ADA integration mandate and Section 504. The plaintiff=s treating team had recommended community placement for over a year and the apartment has been identified, however, the state has not provided the appropriate modifications to allow for community placement.  The state has also failed to provide sufficient interpreter services in the hospital to enable plaintiff to benefit from treatment options. The Judge ruled that an ADA violation could exist and be litigated.  However, before the ADA claim could be tested the case was dismissed as moot when the Plaintiff=s situation changed

***

 

6. (DE) OCR Olmstead Complaint:  OCR complaint filed on behalf of 9 patients at the Delaware Psychiatric Center

 

Summary:  The Department of Health and Human Services Office of Civil Rights is investigating a complaint filed on behalf of 9 residents at the Delaware Psychiatric Center.  The complaint alleges that these residents have been found ready for discharge but have not been provided assistance to receive appropriate community services.    As a result of the OCR investigation, the DPC provided a list of 66 residents who were ready for discharge into the community with supports.  So far, one year later, six of the nine named plaintiffs have been released with appropriate supports, and 45 of the 66 residents on the list have been released into appropriate community settings.

***   

 

7. (GA)  Case Name:  Olmstead v L.C. and E.W. (U.S. Supreme Court 1999)

 

Summary:  Lois Curtis and Elaine Wilson, women with both mental retardation and mental illness, were receiving services in a state hospital even though they had requested community services and their doctors agreed that both woman could be receiving services in the community.  The woman sued the state for violating the ADA integration mandate.  After loosing in the lower courts, the state appealed the case to the U.S. Supreme Court that held that, under Title II of the ADA, States are required to place persons with disabilities in community settings rather than in institutions when the State's treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with disabilities.

***

 

8.  (Guam) Case Name: J.C. v. Gutierrez (DC. Guam 2001)    .

 

Summary: Action against the Governor and Directors of Department of DD and Mental Health for failure to provide necessary therapeutic services to facilitate community placement for individuals with mental illnesses and developmental disabilities in violation of the ADA, 14th Amendment and Section 504.

 

Plaintiffs survived a motion to dismiss and were granted a preliminary injunction.  A trial was held in March 2004.  In June 2004, the court issued permanent injunctive relief.  To ensure the defendants comply with the court order, the court will appoint a Special Master to monitor the development of an appropriate plan by the defendants for the placement in community-based facilities of individuals inappropriately placed in the Adult Inpatient Unit, the rate at which individuals are placed as a result of that plan, and the treatment of the plaintiffs pending placement. 

***

 

9.  (IN) Case Name: Collins v Hamilton (D.IN 2001)

 

Summary:  This class action did not include an ADA claim, but I include because it is relevant to community integration of children with mental health needs. Families of Medicaid-eligible children with mental health needs filed suit alleging that Indiana officials violated federal Medicaid law by failing to provide medically necessary residential psychiatric treatment for children, and violated their Constitutional due process rights by requiring them to agree to give up custody of their children to the state in order to obtain funds necessary for residential psychiatric treatment.  The Judge held that: (1) State violated federal Medicaid law by failing to provide for long-term residential psychiatric treatment to children under the age of 21 whose Early and Periodic Screening, Diagnosis and Treatment (EPSDT) screening revealed that such placement was medically necessary, but (2) State did not violate parents' Constitutional rights by requiring that children be declared a Child in Need of Services in order to receive funding for room and board for residential mental health treatment.

***

 

10.  (KY)  Case Name:  Jeremy and Darvin J., et al. v. Morse, et al. (D.Ky. 1996).

 

Summary:  Class action alleging the state violated the Medicaid Act by failing to inform about and provide an array of EPSDT services. The case does not include an ADA claim but is relevant to community integration.  In May 1996, at the initiation of the lawsuit, Kentucky was second to last in the country in the number of screens that were being done under EPSDT. The parties settled, and the state agreed to an 80 percent participant rate goal and shall continue Medicaid payments for medically necessary mental and behavioral health related services, including: individual and group community-based behavioral health services; therapeutic child and family support, after school support, and summer program or support; partial hospitalization program; intensive outpatient program; day treatment program; therapeutic group residential treatment; residential crisis stabilization; case management; evaluation, collateral services necessary for furtherance of the provision of any of the above medically necessary services; and such other behavioral health and rehabilitative services as may be medically necessary.  The settlement requires that only medical need, not cost be a factor in the provision of these services. 

***

 

11.  (MA) Case Name: Rosie D. v. Swift (D.Mass. October 2001).

 

Summary: Class action alleging that the state has violated the Medicaid AEPSDT,@ Areasonable promptness, Amethod of administration@ and A managed care@ provisions by failing to ensure that class members received necessary, intensive home based services and mental health assessments, resulting in a waiting list for case management services.  The class includes children with mental illness who have been hospitalized or are at risk of hospitalization because of lack of home‑based mental health services.  No ADA integration mandate claim is made. The state has lost a series of motions to dismiss that took the case al1 the way to the Circuit Court and back.  A decision on the issues is likely sometime in 2004.

***

 

12. (ME) Case Name: Risinger et al. V. Concannon et al. (D. ME 2000).

 

Summary: Action alleging that Maine violated federal Medicaid law by limiting mental health services from children under 21 years of age only to children who are enrolled in a small Medicaid waiver program, instead of to all the children who are entitled to these services under Medicaid=s EPSDT program. The suit also alleged a violation of Medicaid responsibility to ensure that there are enough providers to provide for medical needs with reasonable promptness.  At the time the case was filed Maine had a waiting list of 600 children needing mental health services, who could not get them because of a lack of providers.  In May 2002, the parties reached a settlement providing that children who need services will be evaluated more quickly and no child will wait more than six months to receive approved treatment and services.

***

 

13. (MD) Case Name:  Williams v. Wasserman, 937 F. Supp. 524 (D. Md. 1996). 

 

Summary:  Action against the state on behalf of eleven state hospital residents with traumatic brain injury (TBI) or other mental health and neurological impairments, alleging that the state=s failure to implement the individuals= treatment teams= discharge recommendations violates the ADA integration mandate, and the 14th Amendment due process rights to adequate medical care, safety and freedom from bodily restraint.  On September 27, 2001, the District Court issued its ruling that the state had not violated the 14th Amendment or the ADA integration mandate. 

 

Regarding the integration mandate claim, this decision is noteworthy because it is one of only a small number of cases discussing fundamental alteration in this context.  In short, the court finds that requiring the state to provide appropriate community placements to the Plaintiffs any faster than it is already shifting funds to the community would require the state to shift resources to such an extent that it would result in fundamental alteration.  The court held that measured against the 2‑5 year time frame it could take for the state to realize savings from institutional closure (based on the findings of a state=s expert) and considering the need to find community placements for other persons in need of community placement, Maryland=s Adramatic@ progress in placing individuals into the community was acceptable.  The Court ignored the fact that individuals with TBI had been left behind while such progress was being made for others.  Additionally, the decision does not analyze what the costs of placing the Plaintiffs in the community will be over time or how that cost compares to the states= mental health budget as a whole.

***

 

14.  (MI) Case Name:  Olesky v. Michigan, (W.D. Mich. 1999).

 

Summary:  Class action alleging that the state is violating federal Medicaid law by failing to discharge residents of state nursing homes, who have been screened under PASRR and found to not require nursing home level care, into appropriate community settings.  The suit also raises two state law claims, and an ADA integration mandate claim. The parties settled with the state agreeing to provide appropriate and timely placement of all individuals now residing in Michigan who have been or will be determined through the PASRR process to not require nursing home care.  The entity charged with development and acquisition of new resources for individuals covered by the agreement is the state community mental health services programs and they must use a person‑centered planning process in the agreement.

***

 

15.  (MI) Baul v. Haverman: (30th Cir.2002).