1 roberta opheim ombudsman minnesota office of the ombudsman for mental health and developmental...

1 Roberta Opheim Ombudsman Minnesota Office of the Ombudsman for Mental Health and Developmental Disabilities

Minnesota Office of Ombudsman for Mental Health and Developmental Disabilities 2

Disclaimers I am not an attorney. I will cover the background of Olmstead in Minnesota. Sub-Cabinet Agencies will be providing an overview of their goals and activities so I will not be commenting directly on the draft plan. Feel Free to ask questions as we go along. 3

Ombudsman American Bar Association The Ombudsman is an independent governmental official, who receives complaints against government (and government regulated) agencies and/or its officials from aggrieved citizens, who investigates, and who, if the complaints are justified, makes recommendations to remedy the complaints. 4

Important Function The right to look into Unreasonable Unfair Oppressive Unnecessarily Discriminatory acts of government even though they may have been done in accordance with the law or rule. 5

Ombudsman for MH/DD: Mission Statement The ombudsman for persons receiving services for treatment for mental illness, developmental disabilities, chemical dependency, or emotional disturbance shall promote the highest attainable standards of treatment, competence, efficiency, and justice. 6

Who is a Client Any person receiving services or treatment from an agency, facility or program for: Mental Illness Developmental Disability Chemical Dependency Emotional Disturbance 7

Why Call the Ombudsman? You may have a concern or complaint about services a question about rights a question about an action of an agency a question about access to services an idea for making services better a general question or a request for information about services 8

Looking back at the Supreme Courts Olmstead decision--and forward 9

Olmstead and the ADA The Americans with Disabilities Act of 1990 (the ADA) is a broad federal civil rights law that prohibits discrimination against persons with disabilities by both public and private entities. requires reasonable accommodations be made for persons with disabilities in many different settings. requires adequate access to public buildings and programsdoesnt just mean physical access 10

ADA Title II Public Entities ... [N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. 12132 11

Title II regulations: The Integration Mandate A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. Title 28 of the Code of Federal Regulations, section 35.130(d). 12

Olmstead in a nutshell Olmstead vs. L.C. and EW: June 1999 decision by the United States Supreme Court holding that the unnecessary segregation of individuals with disabilities in institutions may constitute discrimination based on disability. Case citation: Olmstead v. L.C., 527 U.S. 581 (1999). 13

History The plaintiffs, LC and EW, were two women with mental illness and developmental disabilities Lived in a Georgia state psychiatric hospital. Wanted to live and receive services in the community and their doctors agreed that discharge to the community was appropriate. Problem: state had a long waiting list for few available community placements. So: LC and EW remained unnecessarily institutionalized for years. 14

They sued: LC and EW claimed that Georgia violated the ADA integration mandate by failing to provide services in the most integrated setting appropriate to meet their needs--in the community, not an institution. After years of litigation, the Supreme Court was asked to decide if unnecessary institutionalization is discrimination under the ADA. LC and EW WON, settled the case, and received community supports: housing, training programs, and employment. 15

How did the Court reach its Result? It first focused on key congressional findings contained in the ADAs preamble: [S]ociety has tended to isolate and segregate individuals with disabilities and, despite some improvements, these forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem. 16

Discrimination against individuals with disabilities persists in such critical areas as institutionalization. Individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, failure to make modifications to existing facilities and practices, and segregation. See 42 U.S.C. 12101(a)(2), (3), (5). 17

The Court concluded: Unjustified isolation is properly regarded as discrimination on the basis of disability under the ADA. integration means opportunities to interact with non-disabled persons, not just being in a less restrictive setting. Congress intended the ADA to step up earlier legislative efforts to secure community living opportunities for people with disabilities 18

Client on the outcome of litigation To live in my own home, well I feel very grateful to all the people who helped me to get my own home and I feel very good about my home. I have a great life and I can make my own decisions. And I can handle my own business, and I feel good about myself. -- Elaine Wilson, from an interview published by ILRU 19

Courts Two Part Test: A person will be presumed to be unnecessarily institutionalized (subject to certain legal defenses) if: The states treating professionals determine that community placement is appropriate for the person, and The person does not oppose transfer from institutional care to a more integrated setting. 20

Ability to challenge states professionals The Courts decision left room for individuals to show: That an independent assessment of the individual supports the individuals ability to live in the community and/or That the states assessment is incorrect, incomplete or otherwise unreasonable. 21

Olmstead also applies to those at risk of institutionalization States have an obligation to prevent institutionalization The ADAs protections also apply to persons already living in the community when a states actions may result in institutionalization Examples State cuts to critical in-home supports Differing eligibility criteria that favor nursing home over community 22

The Court defined some limits: The state might be able to show that the requested relief would result in a fundamental alteration of the states services, a defense for the state. Another defense the state can raise is the existence of a comprehensive, effectively working plan for placing persons in more integrated settings. 23

Fundamental Alteration A fundamental alteration under the ADA would be one that changes the essential nature of a program. Modification of the states financial or clinical eligibility standards is not automatically a fundamental alteration. The cost: The courts can require the state to pay costs, but need to look at overall costs and the overall effect of these costs. 24

Fundamental Alteration The resources available to fund community services: Courts may require the state to transfer institutional resources to help fund community- based placements, but must consider the impact on the states ability to meet all of its obligations. The state has an obligation to provide services in an equitable manner to all eligible persons with disabilities: The Court recognized the states need to provide a range of services to meet the needs of persons with disabilities, without preferential treatment for one individual or group. A person cannot skip to the top of the waiting list by filing a lawsuit for community services. 25

Comprehensive Plan Comprehensive plan - If a state demonstrates that it has A "comprehensive, effectively working plan for placing qualified persons in most integrated settings, and a waiting list created by the state that moves at a reasonable pace not controlled by the state's endeavors to keep its institutions fully populated Then it may be meeting its integration obligations under Olmstead 26

The take away from Olmstead: The ADA can require a state to make reasonable modifications to its programs and services to provide integrated community-based services, rather than relying on institutional placements, including segregated placements in the community. 27

Difficult Questions Remain What are the criteria for evaluating a states "comprehensive, effectively working plan? When might a reasonable modification become a fundamental alteration? Does the state need to seek additional appropriations or maximize participation in Medicaid programs? What costs should be considered, and how do you compare the costs for various types of services? 28

Federal Reforms aimed at integration MFP CFSS Improve state and federal quality standards for HCBS Assure community-based character of HCBS- funded settings; sunshine requirements Establish standards to assure that states meeting promised goals 29

Increased use of community supports and HCBS: Allows people to stay at home and out of institutions Can be individualized to each persons needs Brings more dignity and independence Potential to reduce federal and state costs over the long term 30

Why now? 31 I thought Minnesota did not need an Olmstead Plan because we already have a waiver system providing Home and Community Based Services!

State Plans In response to both the Supreme Courts suggestion that an effective community integration plan that moved at a reasonable pace would go a long way toward satisfying Olmsteads mandate, and the Administrations letters and other guidance, 29 states have issued Olmstead-related plans or reports. Under pressure from the federal court, legislative auditor and from the community, Minnesota has taken first steps toward an Olmstead state plan. 32

Olmstead in Minnesota The Jensen lawsuit was based in part on a report by OMHDD; lawsuit alleged that METO residents were unlawfully and unconstitutionally secluded and restrained. The State of Minnesota agreed to make, as a top concern, the safety and quality of life of the Residents of METO; states that its goal is to provide these residents with a safe and humane living environment free from abuse and neglect. The State also agrees to extend this policy to all people with developmental disabilities, and to those receiving waivered services. 33

Settlement of Jensen case Principles to be followed: Olmstead (most integrated setting) Person centered planning, Use of positive behavioral supports, Opportunity for families to provide input and feedback about the facility Closure of METO (Minnesota Extended Treatment Options) June 30, 2011. METO served individuals with developmental disabilities who posed a risk to public safety. replaced by the Specialty Health System - Cambridge 34

Aversives and positive supports Prohibited aversive techniques: Mechanical restraints such as metal handcuffs, leg hobbles, cable tie cuffs, plasticuffs, flexicuffs, soft cuffs, posey cuffs; manual restraint, prone restraint, chemical restraint, seclusion, and the use of painful techniques to change behavior through punishment of residents with developmental disabilities. Medical/chemical restraints and psychotropic/neuroleptic medications shall not be used for punishment Committee to modernize Rule 40 ( which regulates use of aversive and deprivation procedures). to reflect best practices, positive behavioral supports, and Olmstead principles. 35

Established Olmstead Planning committee Issued public recommendations October 2012. State and DHS shall develop and implement a comprehensive Olmstead plan that uses measurable goals to increase the number of people with disabilities receiving services that best meet their individual needs and in the Most Integrated Setting, and is consistent and in accord with the U.S. Supreme Courts decision in Olmstead v. L.C. 36

Jensen and Minnesota Security Hospital Within sixty (60) days upon Court approval of this Agreement, no later than July 1, 2011, there shall be no transfers or placements of persons committed solely as a person with a developmental disability to the Minnesota Security Hospital. No later than December 1, 2011, persons presently confined at Minnesota Security Hospital who were committed solely as a person with a developmental disability and who were not admitted with other forms of commitment or predatory offender status set forth in paragraph 1, above, shall be transferred by the Department to the most integrated setting consistent with Olmstead v. L.C. 37

Jensen and Anoka Regional Treatment Center Persons committed solely as a person with a developmental disability may be transferred to AMRTC only if they have an acute psychiatric condition. Within thirty (30) days of the Courts approval of this Agreement, any AMRTC resident committed solely as a person with a developmental disability who does not have an acute psychiatric condition will be transferred from AMRTC. The transfer shall be to the most integrated setting consistent with Olmstead v. L.C. 38

Olmstead Planning Committee The goal was to provide recommendations that ensure Minnesotans with disabilities: have choices about how to live, where to live and who to live with; are served in a community-based setting that is most fitting to their needs and their desires; and are treated first and foremost as a person with a desire for self-determination who happens to have a disability. 39

2013 Legislative auditor report on SOS from an Olmstead lens Many patients have stayed longer than necessary in state run hospitals due to inadequate community placement options.(p.41-43) Anoka40% of beds occupied by those not needing to be there: Long waiting lists for those who do need treatment at Anoka Problem compounded by loss of housing, jobs, supports MSH: lack of psychiatrists and effective treatment 19% of patients there more than 10 years More patients could be discharged but there is nowhere for them to go (over 80 on transition unit of MSH.) 40

Recommendations include: Ensure the development and availability of placement options and payment options (p.111-12) Amend the commitment act to ensure periodic court review of all patients, including DD and MID Improve treatment programs and effectiveness: More mental health programming More psychiatrists Effective training for staff Improve the administration and operation of SOS 41

Next Steps One of the Committee's recommendations asked "that the Governor establish an Olmstead Sub-Cabinet to ensure the most efficient and effective inter-agency coordination, planning and implementation of an Olmstead Plan. On January 28, 2013, Governor Mark Dayton issued an Executive Order establishing an Olmstead Sub-Cabinet to develop and implement a comprehensive Minnesota Olmstead Plan. They will meet on the second Tuesday of every month from 3:00pm - 4:30pm in the Elmer Andersen Building in St. Paul. 42

Executive Order In January 2013, Governor Mark Dayton issued an Executive Order establishing a Sub-Cabinet to develop and implement a comprehensive plan supporting freedom of choice and opportunity for people with disabilities. The Olmstead Plan Sub-Cabinet, chaired by Lieutenant Governor Yvonne Prettner Solon, includes the Commissioners or Commissioners designee from the following State agencies: Department of Human Services; Minnesota Housing Finance Agency; Department of Employment and Economic Development; Department of Transportation; Department of Corrections; Department of Health; Department of Human Rights; and Department of Education. Representatives from the Office of the Ombudsman for Mental Health and Developmental Disabilities and the Governors Council on Developmental Disabilities are ex officio members of the Sub-Cabinet. 43

Executive Order cont. The Sub-Cabinet will evaluate policies, programs, statutes and regulations of state agencies against the standards set forth in the Olmstead decision to determine whether any should be revised or modified or require legislative action in an effort to improve the availability of community- based services for people with disabilities. The Sub- Cabinet will seek input from consumers, families of consumers, advocacy organizations, service providers and others. Core groups of staff from Sub-Cabinet agencies are currently working to develop a Minnesota Olmstead Plan document that will guide the states efforts. 44

Olmstead is Broader than HCBS The Olmstead Principles go beyond individuals receiving services in institutional settings. It is Support Services and opportunity for persons with disabilities to engage in all aspects of life in the most integrated settings. That includes a broad array of community life such as: Housing Workforce and employment Education Transportation Health care Corrections Social/Community Life 45

What to Look For State Plan By November1, 2013 the State and the Department shall develop and implement a comprehensive Olmstead plan that uses measurable goals to increase the number of people with disabilities receiving services that best meet their individual needs and in the Most Integrated Setting, and is consistent and in accord with the U.S. Supreme Courts decision in Olmstead v. L.C. State may request extension Public comment opportunity 46

Federal Court Oversight After the plan is completed and approved by the Olmstead Sub Cabinet, it must be submitted to The Court Monitor in the Jensen Settlement Agreement The Federal Court Judge To determine if the State of Minnesota is in substantial compliance with the Jensen Settlement Agreement 47

When the plan is done is Minnesota Done? NO Once the plan is complete the state must implement the plan and measure outcomes achieved related to plan goals. This plan is a living plan intended to be modified as data and feed back emerge along with new research on best practices. This responsibility is ongoing and is a civil right so we have to permanently integrate this into the fabric of services. 48

What can you do? Become an informed citizen as to the civil rights for all citizens of Minnesota who need supports as a result of their disability. Read Olmstead materials and provide comments about the plan including what you like, what is missing, which steps need to be given priority and any ideas you have about helping to make sure Minnesotans with disabilities can experience a life that includes full inclusion with others who do not have a disability. Monitor to ensure the state fulfills its obligations under Olmstead. 49

Resources Kaiser Commission - http://www.kff.org/medicaid/upload/olmstead-at-five- assessing-the-impact.pdf http://www.kff.org/medicaid/upload/olmstead-at-five- assessing-the-impact.pdf Minnesotas Olmstead Planning Committee - http://www.dhs.state.mn.us/main/idcplg? http://www.dhs.state.mn.us/main/idcplg? Department of Justice Olmstead Site - http://www.ada.gov/olmstead/ http://www.ada.gov/olmstead/q&a_olmstead.pdf 50

1 roberta opheim ombudsman minnesota office of the ombudsman for mental health and developmental...

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