Wednesday, March 1, 2017

New York Minority Report on DD Services: Olmstead Misinterpretation

This is from the New York State Assembly minority task force report on the Olmstead Decision and its impact on the state's developmental disability community. The C.A.R.E.S. Plan (Championing Aid, Rights, Equality and Services) makes recommendations to correct the unintended consequences resulting from a misinterpretation of the 1999 Supreme Court Olmstead decision by the U.S. Department of Justice and the State of New York. 

[pages 3-4 of the C.A.R.E.S. report]


On June 22, 1999, the United States Supreme Court held in Olmstead v. L.C. that unjustified segregation of persons with disabilities constitutes discrimination in violation of Title II of the Americans with Disabilities Act (ADA). The Court held that states are required to place persons with developmental disabilities in community settings rather than in institutions when (1) such community placement is appropriate; (2) the affected persons do not oppose the transfer from institutional care to a less restrictive setting; and (3) the placement can be reasonably accommodated, taking into account the resources available to the state and the needs of others with mental disabilities.

In 2009, President Obama directed federal agencies to vigorously enforce the civil rights of Americans with disabilities. Since then, the Department of Justice (DOJ) has made enforcement of the Olmstead Decision a top priority. As such, the DOJ has created a technical assistance guide to assist individuals in understanding their rights under Title II of the ADA and its integration mandate. However, when explaining what factors are relevant in determining whether an individual does not oppose an integrated setting, the DOJ simply states that in cases where the individual wishes to stay in an institutional setting, that such individuals who have been institutionalized or segregated have been given very little information and are unable to make an informed decision. Therefore, public entities must take “affirmative steps” to remedy this history of segregation regardless of the individual’s wishes to stay in institutionalized care.

The DOJ also states that segregated settings include, but are not limited to: (1) congregate settings populated exclusively or primarily with individuals with disabilities; (2) congregate settings characterized by regimentation in daily activities, lack of privacy or autonomy, policies limiting visitors, or limits on individuals’ ability to engage freely in community activities and to manage their own activities of daily living; or (3) settings that provide for daytime activities primarily with other individuals with disabilities. Therefore, any community service that provides day habilitation services for individuals with disabilities is considered segregation, according to the DOJ, and must be discontinued.

In October 2013, Governor Cuomo’s Olmstead Cabinet...released a report and recommendations titled “A Comprehensive Plan for Serving People with Disabilities in the Most Integrated Setting” which also ignores the second prong in the Olmstead Decision. The Cabinet made a blanket recommendation to “assist in transitioning people with disabilities into the community from developmental centers, Intermediate Care Facilities, sheltered workshops, psychiatric centers, adult homes, and nursing homes,” giving no deference to an individual’s wishes to stay in institutionalized care. In some cases, families have never been asked if moving their family member out of institutional care is even in the best interest of the individual.

This “one-size-fits-all approach” does not work in the developmental disabilities community as every person has different abilities and different wishes. Testimony was shared at each forum from people with disabilities currently employed at sheltered workshops and individuals expressed their passion for working there, seeing their friends, and receiving a pay check. If sheltered workshops are closed entirely, some parents of individuals with developmental disabilities are concerned that their child will not be able to be integrated into the community workforce since they will not be competitive with other available employees in the community. If sheltered workshops remain open, creating an integrated work environment, it will result in jobs being taken away from individuals with disabilities. At the Task Force forums, some individuals with disabilities stated that they prefer being with their friends in the sheltered workshops.

See also, "The Olmstead Decision Has Been Misinterpreted" from VOR

No comments: