Wednesday, September 20, 2017

Kaiser Health News on the effort to replace Obamacare

A renewed effort to replace Obamacare is moving forward, but this time there is a shorter time-limit for passage. The proposed Graham-Cassidy bill in the U.S. Senate could pass by September 30th, 2017 with a simple majority of votes, but after October 1st, 2017, the beginning of the new fiscal year, the Republicans would need 60 votes to pass the bill under Senate rules. Based on the unpopularity of previous bills this year to Replace and Repeal Obamacare, this would very likely be an insurmountable obstacle for passage.

Here is an excerpt from an article in Kaiser Health News (KHN), "Last-Ditch Effort By Republicans to Replace ACA: 5 Things You Need to Know" by Julie Rovner, 9/19/17:

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Here are five things to know about the latest GOP bill: 

1. It would repeal most of the structure of the ACA.

The Graham-Cassidy proposal would eliminate the federal insurance exchange, healthcare.gov, along with the subsidies and tax credits that help people with low and moderate incomes — and small businesses — pay for health insurance and associated health costs. It would eliminate penalties for individuals who fail to obtain health insurance and employers who fail to provide it.

It would eliminate the tax on medical devices.

2. It would eliminate many of the popular insurance protections, including those for people with preexisting conditions, in the health law.

Under the proposal, states could “waive” rules in the law requiring insurers to provide a list of specific “essential health benefits” and mandating that premiums be the same for people regardless of their health status. That would once again expose people with preexisting health conditions to unaffordable or unavailable coverage. Republicans have consistently said they wanted to maintain these protections, which polls have shown to be popular among voters.

3. It would fundamentally restructure the Medicaid program.

Medicaid, the joint-federal health program for low-income people, currently covers more than 70 million Americans. The Graham-Cassidy proposal would end the program’s expansion under the ACA and cap funding overall, and it would redistribute the funds that had provided coverage for millions of new Medicaid enrollees. It seeks to equalize payments among states. States that did not expand Medicaid and were getting fewer federal dollars for the program would receive more money and states that did expand would see large cuts, according to the bill’s own sponsors. For example, Oklahoma would see an 88 percent increase from 2020 to 2026, while Massachusetts would see a 10 percent cut.

The proposal would also bar Planned Parenthood from getting any Medicaid funding for family planning and other reproductive health services for one year, the maximum allowed under budget rules governing this bill.

4. It’s getting mixed reviews from the states.

Sponsors of the proposal hoped for significant support from the nation’s governors as a way to help push the bill through. But, so far, the governors who are publicly supporting the measure, including Scott Walker (R-Wis.) and Doug Ducey (R-Ariz.), are being offset by opponents including Chris Sununu (R-N.H.), John Kasich (R-Ohio) and Bill Walker (I-Alaska).

On Tuesday 10 governors — five Democrats, four Republicans and Walker — sent a letterto Senate leaders urging them to pursue a more bipartisan approach. “Only open, bipartisan approaches can achieve true, lasting reforms,” said the letter.

Bill sponsor Cassidy was even taken to task publicly by his own state’s health secretary. Dr. Rebekah Gee, who was appointed by Louisiana’s Democratic governor, wrote that the bill “uniquely and disproportionately hurts Louisiana due to our recent [Medicaid] expansion and high burden of extreme poverty.”

5. The measure would come to the Senate floor with the most truncated process imaginable.

The Senate is working on its Republican-only plans under a process called “budget reconciliation,” which limits floor debate to 20 hours and prohibits a filibuster. In fact, all the time for floor debate was used up in July, when Republicans failed to advance any of several proposed overhaul plans. Senate Majority Leader Mitch McConnell (R-Ky.) could bring the bill back up anytime, but senators would immediately proceed to votes. Specifically, the next order of business would be a process called “vote-a-rama,” where votes on the bill and amendments can continue, in theory, as long as senators can stay awake to call for them.

Several senators, most notably John McCain, who cast the deciding vote to stop the process in July, have called for “regular order,” in which the bill would first be considered in the relevant committee before coming to the floor. The Senate Finance Committee, which Democrats used to write most of the ACA, has scheduled a hearing for next week. But there is not enough time for full committee consideration and a vote before the end of next week.

Meanwhile, the Congressional Budget Office said in a statement Tuesday that it could come up with an analysis by next week that would determine whether the proposal meets the requirements to be considered under the reconciliation process. But it said that more complicated questions like how many people would lose insurance under the proposal or what would happen to insurance premiums could not be answered “for at least several weeks.”

That has outraged Democrats, who are united in opposition to the measure.

“I don’t know how any senator could go home to their constituents and explain why they voted for a major bill with major consequences to so many of their people without having specific answers about how it would impact their state,” said Senate Minority Leader Chuck Schumer (D-N.Y.) on the Senate floor Tuesday.


Kaiser Health News, a nonprofit health newsroom whose stories appear in news outlets nationwide, is an editorially independent part of the Kaiser Family Foundation.


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Friday, September 1, 2017

Ann Arbor, MI, Fitness Program for DD


This is from an Intentional Communities of Washtenaw (ICW) email newsletter:

Consider the Movers and Shakers Program

...The goal of this program is to provide an environment where adults with disabilities (18 years of age and older) can build cardiovascular fitness and muscular strength and endurance. Enrollment for Movers and Shakers includes 8, 90-minute sessions, hosted at the Meri Lou Recreational Center in Ann Arbor in partnership with Parks and Recreation of Ann Arbor.

Every participants works with their very own coach, 1:1 ratio, with a dedicated pre-medical or kinesiology student. The program fee is $300 per semester but scholarships are available to anyone in need.The FALL SEMESTER begins September 26th. For registration information and contact info, CLICK HERE .


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Find out more about the organization providing this program and similar programs for children and adults with special needs:


"It is LightUp’s mission to develop exceptional research-informed programs and to make these programs accessible to those who need them the most.

"LightUp strives to create an open, supportive, and fun environment for individuals with special needs to actively participate within their community, develop meaningful ongoing relationships, and ultimately improve their overall health, happiness, and life satisfaction.

"We work in collaboration with Sunfield Center, our affiliated mental health organization to advocate and provide high quality programs for individuals with special needs within our community."

Wednesday, August 30, 2017

From the Section 298 Team: More opportunities for public input in mental health reform

Total eclipse
August 30, 2017

From the Michigan Department of Health and Human Services, Section 298 Team:

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Dear stakeholders,

Over the last two years, the Michigan health care community has been engaged in a statewide discussion on improving the coordination of physical health and behavioral health services. This discussion is known as the Section 298 Initiative. This initiative is based upon Section 298 in the Public Act 268 of 2016. Under Section 298, the Michigan Legislature directed the Michigan Department of Health and Human Services to develop a set of recommendations “regarding the most effective financing model and policies for behavioral health services in order to improve the coordination of behavioral and physical health services for individuals with mental illnesses, intellectual and developmental disabilities, and substance use disorders.” MDHHS submitted a final report with recommendations for the Michigan Legislature on March 15, 2017.

The Michigan legislature approved a revised version of Section 298 as part of Public Act 107 of 2017. Under the revised Section 298, the Michigan legislature directed the Michigan Department of Health and Human Services to develop and implement up to three pilots and one demonstration model to test the integration of physical health and behavioral health services. The department will be working with stakeholders across the Michigan health care community to develop and implement the pilots and demonstration model over the next few years.

Under the revised Section 298 language, the Michigan legislature also directed the department to recruit a project facilitator to assist with the development and implementation of the pilots and demonstration model. The department has designated the Michigan Public Health Institute as the project facilitator for the Section 298 Initiative. The Michigan Public Health Institute will provide support to the department with supporting stakeholder discussions and managing the development and implementation process. Jo Anna Trierweiler will serve as the main project facilitator, and Jane Pilditch will serve as the co-facilitator.

The department will be working with the project facilitator to announce the next phase of the Section 298 discussion in September 2017. The next phase will focus on (1) the development of the structure of the pilot(s) and demonstration model and (2) the development of the evaluation process. The department will be also be contracting with one of Michigan’s research universities to support the evaluation process. The department will provide additional information about the next phase of the Section 298 Initiative in the near future.

We look forward to continuing to work with you on improving the coordination of physical health and behavioral health services for Michiganders. If you have any questions about this email or the Section 298 Initiative, please send an email to MDHHS-298@michigan.gov.

Sincerely,

The Section 298 Team
Michigan Department of Health and Human Services


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Background on the Section 298 Initiative

Michigan compromise budget for mental health: stalls complete takeover by medicaid health plans & funds pilot programs

In May 2017, The DD News Blog covered proposed radical changes to how services for people with developmental disabilities, mental illness, and substance abuse disorders will be delivered and who will be in control of the Medicaid dollars that pay for those services. The intent of proposed legislation was the eventual privatization of mental health services by “integrating” mental health and medical Medicaid services under the control of Michigan’s private Medicaid Health Plans.

The final budget compromise has at least stalled the complete privatization of the mental health system. The compromise preserves the current ten Prepaid In Patient Health Plans (PIHPs), regional administrative agency that distribute Medicaid funding for Mental Health services. There will also be as many as four pilot programs to test whether privatization, i.e. handing over control of Medicaid funding for mental health services to Michigan’s Medicaid Health Plans, can lower costs and expand services.

These are excerpts from an article in Crain’s Detroit Business, “Budget deal advances plan to test Medicaid mental health integration” by Jay Greene, 6/20/17.

“The budget deal allocates $2.8 million the first year to the fiscal 2017 budget to plan the pilots, and $3.1 million for fiscal 2018, which starts Oct. 1, to fund the pilots themselves. The $5.9 million funding includes $2 million in general state tax funds.

“The implementation of the pilots will be overseen by the state Department of Health and Human Services, which must hire by Aug. 1 an experienced project facilitator. The manager must establish performance metrics and pilot plans.”


“Over the past 18 months, Michigan's 11 Medicaid health plans have lobbied legislators and the public to try a semi-privatized approach. They contend they can run an efficient $11.6 billion integrated delivery system, save the state several hundred million dollars of administrative money and plow back the savings into expanded services. There are an estimated 350,000 people in the state's Medicaid program with mental illness, developmental and intellectual disabilities, and substance abuse problems.

“But mental health advocates, providers and families object to Medicaid HMOs taking over the system — even to test an integrated approach with which more than two dozen states are experimenting. They believe health plans have insufficient experience at overseeing complex populations and argue that private profit motivations of the health plans will trump public service.”


“[State Senator Mike] Shirkey, chair of the Senate health policy committee, has told Crain's the Medicaid HMOs will not be able to keep any savings. They must reinvest any savings into expanded services.

“Bob Sheehan, CEO of the Michigan Association of Community Mental Health Boards, said he is concerned that the budget language allows Medicaid health plans to contract outside of the several dozen established community mental health agencies and provider networks.

“‘Making the local community mental health (agency) only one of many providers in the pilot communities will immediately drain dollars from the community's mental health safety net ... leaving it unable to fulfill its statutory safety net role,’ Sheehan said Tuesday night in an email to Crain’s.”


Implementation of the pilot programs will include the following:
  • That any changes made to a Medicaid waiver or Medicaid state plan to implement the pilot project must only be in effect for the duration of the pilot project.
  • That the project is consistent with the stated core values as identified in the final report of the Section 298 workgroup in Public Act 268 of 2016.
  • That updates are provided to the medical care advisory council, behavioral health advisory council and developmental disabilities council.

Michigan House Establishes New Mental Health Task Force

August 30, 2017---

Task Forces come and go and sometimes they make a difference. In any case, this one gives you an opportunity to communicate to members of the Michigan House of Representatives directly about how you would improve the mental health system in Michigan. The specific topics that the task force is interested in are not related to developmental disabilities, but that does not mean you can't participate and give suggestions. All too often, we are told that everything is just fine for people with developmental disabilities and that we really are amazing at serving people with DD in the community. We know that is not true, so don't let state government sweep problems in the system for people with DD under the rug.

This if from the Michigan Assisted Living Association (MALA) newsletter, August 1, 2017:

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House Establishes New Mental Health Task Force

Michigan House Speaker Tom Leonard has created the bipartisan House C.A.R.E.S. (Community, Access, Resources, Education and Safety) task force to obtain input from individuals and professionals for improving mental health services in our state. The task force members are listed below.

The Speaker’s website makes specific reference to gathering information to help develop legislation for reforming mental health services across Michigan to address veterans’ care, substance abuse treatment, mental health courts, and training for law enforcement. The task force will undoubtedly also receive input on other issues.

The task force held its initial meeting on July 31 in Livingston County. According to the Michigan House Republicans website, the next task force meeting is on August 17 at Hope Network in Grand Rapids.

Please note that the public can submit suggestions regarding mental health services in Michigan by e-mail to Rep. Hank Vaupel (R-Fowlerville) who serves as one of the co-chairs for the task force. His e-mail address is HankVaupel@house.mi.gov. The other co-chair is Rep. Klint Kesto (R-Commerce Township)

The other task force members are as follows:


Rep. Edward Canfield D.O. (R-Sebewaing)
Rep. Fred Durhal III (D- Detroit)
Rep. Vanessa Guerra (D-Bridgeport)
Rep. Abdullah Hammoud (D-Dearborn)
Rep. Robert Kosowski (D-Westland)
Rep. David LaGrand (D-Grand Rapids)
Rep. Dave Pagel (R-Berrien Springs)
Rep. Daire Rendon (R-Lake City)
Rep. Sylvia Santana (D-Detroit)
Rep. Jason Wentworth (R-Clare)
Rep. Mary Whiteford (R-Casco Township)
Rep. Robert Wittenberg (D-Oak Park)


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House C.A.R.E.S. Committee

The next meeting of the Committee will be on Thursday, Sept. 7, 2017 in the House Appropriations Room, 352 State Capitol, Lansing. 1 - 3 p.m. meeting to start after legislative session ends for the day.

Friday, August 25, 2017

Comments to the U.S. Department of Justice on the "Integration Mandate"

The U.S. Department of Justice recently issued a request for comments, in response to Executive Order 13777, which requires federal agencies to evaluate and implement measures to lower regulatory burdens on the American people. The Executive Order directs each agency's Regulatory Reform Task Force to identify regulatory actions that do the following:
  • Eliminate jobs, or inhibit job creation;
  • are outdated, unnecessary, or ineffective;
  • impose costs that exceed benefits;
  • create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies;
  • are inconsistent with the requirements of the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act, 2001, 44 U.S.C. 3516 note), or OMB Information Quality Guidance issued pursuant to that provision, in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or
  • derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.
VOR, a national non profit organization that advocates for high quality care and the human rights of individuals with intellectual and developmental disabilities (I/DD), submitted comments on August 14, 2017, to the DOJ on policies regarding enforcement of the “Integration Mandate” of the Americans with Disabilities Act and the 1999 U.S. Supreme Court Olmstead decision. VOR believes policies from the DOJ wrongly impose an interpretation of the Integration Mandate that denies individual choice and need.

These comments are available on the VOR Website. The supporting references have been omitted here, but can be found in the PDF version of the document.

Americans with Disabilities Act regulations address General Prohibitions against Discrimination under the ADA. 


VOR Olmstead Resources

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August 14, 2017

Department of Justice Request for Public Comment
: Enforcing the Regulatory Reform Agenda; Department of Justice Task Force on Regulatory Reform Under E.O. 13777

Introduction

VOR is a national non profit organization that advocates for high quality care and the human rights of individuals with intellectual and developmental disabilities (I/DD). Our members are primarily family members and guardians of individuals with I/DD who access state Medicaid long-term services and supports. Many of our members are on the severe and profound end of the disability continuum, some functioning at the level of a small child or infant. Their intellectual disabilities are often accompanied by complex physical and medical conditions and behavioral concerns. The disabilities of these individuals are such that many require and choose 24-hour supervision and nursing care and community integration found in Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICFs/IID) and similar facilities.

Regulatory Burden - DOJ’s Integration Mandate

DOJ Statement on Enforcement of the Integration Mandate of Title II of the ADA and Olmstead, June 22, 2011

DOJ Statement on Application of the Integration Mandate of Title II of the ADA and Olmstead to State and Local Governments’ Employment Service Systems for Individuals with Disabilities, October 31, 2016

The DOJ interpretation, enforcement, and application of the ADA and Olmstead wrongly impose an “Integration Mandate” that denies individual choice and need. The adverse affects of this policy is manifold:

1. Health and safety are placed at risk when DOJ’s “integration mandate” forces individuals against choice and need out of ICF/IID homes into small group homes without appropriate services, supports, and supervision. This policy acts counter to Olmstead.
2. For some individuals, community integration is placed at risk in a four person group home with only a 1:4 staffing ratio. Small settings do not have sufficient staffing and transportation resources to accompany severely and profoundly intellectually disabled individuals on outings. These individuals require 1:1 supervision in the community, and for some, nursing support.
3. Facility-based supported employment and day programming are placed at risk leaving individuals with disabilities who cannot perform competitive work without opportunities for skill development.
4. ICF/IID, sheltered workshop, and day programs employ experts in the care and treatment of I/DD. The development of this expertise and access to it is lost as congregate settings are closed.
5. The per person cost of care increases dramatically as congregate care is shut down as sharing of resources is limited in small HCBS waiver settings. Nursing, therapy, adaptive equipment, direct care, and transportation are shared in an ICF/IID. These services are separately contracted on an individual basis in waiver settings. Forcing complex needs people into community settings against choice has adversely affected Home and Community-Based Services 
(HCBS) Wait Lists . 
6. Access to appropriate medical care can be difficult to obtain in scattered small settings as few medical practitioners have experience in treating individuals with severe and profound I/DD.
7. Forcing individuals with I/DD into competitive employment against choice puts individuals with I/DD in risky circumstances as many private businesses are not set up to address maladaptive behaviors, personal care, special feeding needs, and medication administration. Employees of private businesses are placed in difficult situations if they are not trained to handle violent and other maladaptive behaviors, health issues such as seizures, and personal care needs.
8. Costly lawsuits brought by DOJ and Protection & Advocacy agencies (P&A) against state governments have cost millions in taxpayer dollars and resources at the federal and state level to litigate and defend against. Families fighting these lawsuits must fundraise to hire legal representation to ensure their loved ones interests are protected. The cost and worry these lawsuit inflict on law abiding Americans who already face a difficult road in life protecting their intellectually disabled loved ones is inhumane.

DOJ’s notion of an “integration mandate” emanates from: 28 C.F.R. § 35.130(d) A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. A mandate conflicts with the requirement that integrated placements are “appropriate to the needs of qualified individuals with disabilities.”

The disability population is complex and diverse encompassing mental, intellectual, physical, medical and behavioral conditions. The Olmstead Court recognized this diversity, and therefore, cautioned and warned of the need for a range of settings, including institutional settings, throughout its majority and concurring opinions. Justice Ginsburg stated,

“We emphasize that nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle and benefit from community settings...Nor is there any federal requirement that community-based treatment be imposed on patients who do not desire it.” Olmstead 601-602

Therefore, the notion of an “integration mandate” defies Olmstead. It also defies DOJ regulation:

  • 28 CFR 35.130(e)(1) Nothing in this part shall be construed to require an individual with a disability to accept an accommodation, aid, service, opportunity, or benefit provided under the ADA or this part which such individual chooses not to accept.
  • 28 C.F.R § 35.130 public entities are required to ensure that their actions are based on facts applicable to individuals and not on presumptions as to what a class of individuals with disabilities can or cannot do. 

DOJ regulation defines an “integrated setting appropriate to the needs of an individual” to be:

28 C.F.R. Pt. 35, App. A (2010) (addressing § 35.130) 


i.e., in a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible, and that persons with disabilities must be provided the option of declining to accept a particular accommodation

DOJ’s June 22, 2011 guidance states that integrated residential settings are “scattered-site housing with supportive services” and that congregate settings are “segregated.”

DOJ’s October 31, 2016 guidance states that integrated work settings allow individuals “to work in a typical job in the community like individuals without disabilities” and that sheltered workshops are “segregated.”

DOJ fails to understand that just as beauty is in the eye of the beholder, integration is as well.

  • A profoundly intellectually disabled young man in a wheelchair who has no concept of hazards cannot maneuver his wheelchair independently in the community, but can on his own in a large ICF/IID with long, wide hallways, no stairs to fall down, lots of areas to visit, and plenty of caregivers, visiting family members, and volunteers to keep a watchful eye on him. In a small community setting, this young man would find himself bumping into walls and furniture with his wheelchair.
  • A severely autistic man prone to violent behaviors and elopement may be a danger to himself and others in a small setting. But, he may find more freedom and independence in a large facility with more staff on hand to support his behaviors, more places to visit and activities to engage in, and in many cases, large grounds on which to take recreation where he cannot harm others.
  • A severely intellectually disabled woman with quadriplegia and a ventilator likely will not have sufficient staff to take her on outings if she lives in a four person group home with the typical 1:4 staffing ratio. She requires 1:1 supervision in the community and possibly nursing support.
  • A severely autistic young lady with maladaptive behaviors may find a full work-day of supported employment daily in a sheltered workshop. This young lady may be too costly to employ in a community business and her behaviors too hazardous to herself and others which may severely limit the number of hours she is employable in the private sector.
Therefore, for some, a large ICF/IID provides more independence, freedom and community integration than a small community group home, and a sheltered workshop provides more hours of employment and integration than a competitive job. Integration is in the eye of the beholder.

It is for these reasons the Olmstead Court held,

"Unjustified isolation, we hold, is properly regarded as discrimination based on disability. But we recognize, as well, the States’ need to maintain a range of facilities for the care and treatment of persons with diverse mental disabilities, and the States’ obligation to administer services with an even hand.” Olmstead at 597 (Emphasis added.)

Informed Choice

DOJ’s guidance asserts a concept of “informed choice” and suggests that individuals and families have historically not acted in an informed way when they have chosen institutional placements. But, the ADA and Olmstead do not qualify the term “choice” by defining an informed or ill-informed choice. Doing so, would negate choice.

Throughout Olmstead’s majority and concurring opinions, the justices state the need for a range of facilities, recognize the right of an individual to oppose an accommodation, and establish a three-pronged test for community placement that incorporates individual need and choice. In doing so, the Olmstead Court emphasizes the rights of the individual with disabilities and the importance of health and safety. Olmstead states,

"For other individuals, no placement outside the institution may ever be appropriate." Olmstead 605 

“Some individuals, whether mentally retarded or mentally ill, are not prepared at particular times–perhaps in the short run, perhaps in the long run–for the risks and exposure of the less protective environment of community settings”; for these persons, “institutional settings are needed and must remain available.” Olmstead 605

“Each disabled person is entitled to treatment in the most integrated setting possible for that person—recognizing that, on a case-by-case basis, that setting may be in an institution.” Olmstead 605

“In light of these concerns, if the principle of liability announced by the Court is not applied with caution and circumspection, States may be pressured into attempting compliance on the cheap, placing marginal patients into integrated settings devoid of the services and attention necessary for their condition.” Justice Kennedy, Concurring Opinion, Olmstead 610

DOJ Actions

DOJ brings what it terms “Olmstead actions” against states to enforce its “integration mandate.” These actions are ostensibly aimed at expanding HCBS services, but have the effect of reducing the ICF/IID and sheltered workshop choice. To the extent that the DOJ is successful in intimidating states to force closures of ICFs/IID and sheltered workshops, these actions also have the effect of fundamentally altering a states’ service system, overriding the executive and legislative decisions of elected officials and the placement decisions of private citizens. Justice Ginsburg stated,

"Accordingly, we further hold that the Court of Appeals’ remand instruction was unduly restrictive. In evaluating a State’s fundamental-alteration defense, the District Court must consider, in view of the resources available to the State, not only the cost of providing community-based care to the litigants, but also the range of services the State provides others with mental disabilities, and the State’s obligation to mete out those services equitably." Olmstead 597 (Emphasis added.)

States are in a better position to know the needs of their fragile constituents, and therefore, federalism calls for decisions concerning the balance of service systems to be deferred to states to ensure the effective, compassionate, and efficient use of resources.

DOJ enforcement in relation to the make-up of state developmental disabilities (DD) service systems ignores the reality that these systems are overwhelmingly balanced in favor of community services. Exhibit A shows that ICF/IID care makes up just a fraction of DD service system capacity. Most states do not notify families of the ICF/IID choice in defiance of federal Medicaid law for fear of a DOJ or P&A action. As noted, the loss of a vital choice on the continuum of care has contributed to large HCBS wait lists that have grown dramatically for the reasons stated in Exhibit A.

Historically, individuals and their families accessing services at targeted facilities are overwhelmingly opposed to a DOJ action. Such actions impose an intense burden on families both in terms of emotional hardship, worry, and financial stress. Important accommodations which make life manageable for individuals with I/DD and their caregivers are callously put at risk with DOJ actions. Families must fundraise and expend significant resources to defend against DOJ actions as publicly funded legal assistance through the P&
A program is not available from highly conflicted advocates who only advocate for people who can handle and benefit from community services. District Court Judge Leon Holmes best described the position of families in his Dismissal Order of a DOJ action,

“Most lawsuits are brought by persons who believe their rights have been violated. Not this one...All or nearly all of those residents have parents or guardians who have the power to assert the legal rights of their children or wards. Those parents and guardians, so far as the record shows, oppose the claims of the United States. Thus, the United States [Department of Justice] is in the odd position of asserting that certain persons’ rights have been and are being violated while those persons – through their parents and guardians disagree.” US. v. Arkansas, 4:09-CV-0033, Dismissal Order, June 8, 2011

Ignoring the careful and loving decision-making of families has come with tragic consequences. Justice Kennedy warned against just this in his concurring opinion in Olmstead,

“It would be unreasonable, it would be a tragic event, then, were the American with Disabilities Act of 1990 (ADA) to be interpreted so that States had some incentive, for fear of litigation, to drive those in need of medical care and treatment out of appropriate care and into settings with too little assistance and supervision.” Justice Kennedy, Concurring Opinion, Olmstead 610

The DOJ settlement agreement in Georgia was paused due to the high number of deaths resulting from DOJ’s integration mandate. Recent tragedies in Virginia connected to a DOJ settlement agreement have also caused alarm. See Exhibit B for a discussion on abuse, neglect, and death resulting from deinstitutionalization.

The threat of DOJ interference in a state can have serious ramifications for individuals with I/DD. P&A and DOJ activity in Illinois led to deinstitutionalization efforts, but the state was unable to fund and provide appropriate community supports. A recent Chicago Tribune investigation revealed that widespread abuse was occurring in Illinois’ community system while the state’s P&A was either unaware or did not address issues. See Exhibit B. It took newspaper reporters to bring the rampant mistreatment to light. Illinois’ P&A failed the fragile clients of Illinois’ community system. DOJ’s Statements of Interest filed in Illinois P&A actions helped to drive deinstitutionalization there before an adequate community service system was put in place.

Protection & Advocacy

VOR wishes to correct DOJ’s citation of the Protection & Advocacy statute in its June 22, 2011 guidance. The statute states, “the State shall have in effect a system to protect and advocate the rights of individuals with developmental disabilities.” 42 USC 15043. DOJ leaves out the qualifier “developmental” in its guidance.

Conclusion

VOR requests DOJ to honor individuals in their application of the ADA and Olmstead. Congress and the Olmstead Court did not mean for disability law to be feared by individuals with disabilities, as DOJ’s interpretation yields. Enabling community services for those who can handle and benefit from them should not come at the expense of more vulnerable individuals with I/DD who need and choose congregate care.

Friday, August 18, 2017

Crime rates against people with disabilities are twice as high or more than for non-disabled

The U.S. Department of Justice's Bureau of Justice Statistics released a report  in July 2017 showing that people with disabilities are at least twice as likely to be victimized by violent crime as people without disabilities. 

Disability Scoop, a news Website on developmental disabilities, summarized the findings of the Justice Department report in an article by Shaun Heasley, 7/18/17.

  • People with disabilities are more than twice as likely to be victims of violent crime, according to new federal data.
  • Moreover, this population faced three times the odds of the most serious violent crimes like rape, sexual assault, robbery or aggravated assault.
  • Among people with disabilities, the agency found that individuals with cognitive issues were most likely to be targeted.
  • In 40 percent of cases, the Bureau of Justice Statistics reported that individuals with disabilities who were victimized knew the perpetrator compared to just 32 percent of people without disabilities.
  • Men and women with disabilities faced similar odds of victimization, according to the data.
  • The report indicated that 1 out of 5 crime victims in this population are believed to have been targeted because of their disability.
Most of the statistics presented are based on the noninstitutionalized U.S. residential population, aged 12 and older. The report goes into some detail on the methodology used to collect and interpret the data and the limitations on estimating the rate of crimes against people with disabilities.

Additional estimates in the DOJ report show crime rates against people in different segments of the disability population. Those with cognitive and multiple disabilities were generally more likely to be victimized:

  • During 2011-15, persons with cognitive disabilities has the highest rates of total violent crime (57.9 per 1,000), serious violent crime (22.3 per 1,000), and simple assault (35.6 per 1,000) among the disability types measured.
  • During 2011-15, while 49% of persons with disabilities had multiple disability types..., an estimated 54% of violence against persons with disabilities occurred against those with multiple disability types. 
  • Sixty-five percent of rapes or sexual assaults against persons with disabilities were committed against those with multiple disability types, the highest percentage among the crime types examined.