The Choice Resolution, supported by many family groups and individuals who work with people with disabilities, is intended to preserve specialized services and residential programs as an option for people with developmental and other disabilities. Even before the resolution had final approval, the ARC Michigan, UCP Michigan, the Michigan Disability Rights Coalition, and Michigan Protection and Advocacy Services wrote a letter to the Michigan Department of Community Health (MDCH) to avert the possibility that too much choice for people with developmental disabilities might interfere with the advocates' agenda. The letter, addressed to Janet Olszewski, the Director of MDCH, and dated July 15, 2010, expressed alarm over "increased segregation and congregation" of people with developmental disabilities. The advocates demanded that MDCH administrators soldier-on in their efforts to eliminate larger licensed community group homes housing more than six people. They did this apparently without any regard for the wishes, needs, or choice of the the people who actually live in these homes.
We know that the ultimate goal of the MDCH is to eliminate licensed group homes, sheltered workshops, day programs, and other specialized disability-only programs. The state must be thrilled to have influential advocacy groups supporting their plans, but families may question whether these groups represent the interests of their loved-ones when they are so dismissive of anyone who does not agree with them or share their ideology.
The letter, signed by Dohn Hoyle of the ARC Michigan, Glen Ashley of UCP Michigan, Norm DeLisle of MDRC, and Elmer Cerano from MPAS, goes to some lengths to portray the "decision makers" who don't agree with these advocates as ignoramuses: Surely, they've never read the Oklahoma Quality Tracking Project that followed the Hissom Lawsuit (1990-1995) and showed that "any home with more than two people showed less progress in Self-Care Abilities". They probably don't even know that Val Bradley, the President of the Human Services Research Institute, said that "...the bigger the residence, the less choice." Nor have they read the speech by Sam Bagenstos from the US Department of Justice about integration. Some of the decision makers may not even know that there is an Article 19 of the United Nations "Convention on the Rights of Persons with Disabilities". How dare they pretend to know anything about what is good for people with disabilities, other than what these advocates tell them.
Nevertheless, all the studies in the world and pronouncements by supporters of full inclusion for all do not change the obligation of the Michigan community mental health system to provide appropriate services to people with developmental disabilities, to allow full participation by the person served or their legal representative in making decisions, and to implement person-centered plans based on the needs, preferences, and choices of the disabled person.
The advocates, displaying either their own ignorance of the law or a willingness to distort the facts to further their goals, misrepresent the Americans with Disabilities Act and the U.S. Supreme Court's Olmstead decision to support their demands:
The letter says, "Title II of the ADA calls for providing public services in the most integrated settings", but the ADA regulations on integration say, "A 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)]. That little phrase, "appropriate to the needs of qualified individuals with disabilities", that was so carefully omitted, changes everything. The needs of the individual define the extent to which the person will be integrated into the larger community.
ADA regulations recognize a dual mandate - the right not to be discriminated against and the right to reject services that the individual does not accept:
- 42 U.S.C. § 12132 : "Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the servicees, programs, or activities of a public entity, or be subjected to discrimination by any such entity."
- [28 C.F.R. §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."
The Supreme Court's Olmstead Decision which addresses the question of whether unwanted institutionalization in a state-run facility is discrimination under the ADA, never mentions community-based congregate facilities. The statement in the letter that, "Olmstead certainly did not say it was permissible to build and house individuals in new segregated settings" is technically true but totally misleading.
The Olmstead decision says that transfer to a community placement from an institution is required and appropriate when –
- “(a) the State’s treatment professionals have determined that community placement is appropriate;
- (b) the transfer from institutional care to a less restrictive setting is not opposed by the affected individual; and
- (c) the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” 119 S. Ct. at 2181.
The letter discusses experiences from the closure of Mount Pleasant Center, an Intermediate Care Facility for the Mentally Retarded (ICF/MR). Bill Allen and Angela Martin, who were responsible for discharging people from Mount Pleasant and monitoring them afterwards, came to the conclusion that "smaller is better and smallest is best", the letter says. "They maintain that was true for every single person who moved back to the community, some 120 persons. Their extensive experience leads them to believe that this is true for anyone with a developmental disability who would be served by the public mental health system."
The families of the people at Mount Pleasant Center are in a better position to respond to that statement than I am. I do know that the effects of the closure on former residents were mixed, with many families happy to have their family member living closer to them, but missing some of the services readily available at Mount Pleasant that are not available to them in community settings. Many of the families opposed closure of the facility and testified at hearings to that affect before the Michigan House of Representatives in March 2009. Some of the former residents of Mount Pleasant Center were not placed in the community, but were instead transferred to another ICF/MR at Caro Center, a state psychiatric hospital. On July 28, 2010, in a meeting with a state senator from Ottawa County and family groups, Michael Head from the MDCH confirmed that at least 10 people who were moved out of Mount Pleasant Center have died. Out of respect for former residents of Mount Pleasant Center and their families, the advocates should not be so quick to accept everything the state or its representatives tell them just because it bolsters their case for full inclusion for everyone.
All the groups signing the letter are recipients of federal funds for people with disabilities and should be held to higher standards for truth and accuracy. They are entitled to their opinions on inclusion, but not to misinterpretations and distortions of federal mandates.
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