Some observations & Arguments regarding
​
the need for administrative enforcement of Olmstead

Val's Take                 

                    The 2010  US Dept. of Justice [DOJ] Findings Letter to Delaware [see article below this one] is we believe a game-changer AND it's full importance to Olmstead Enforcement barely tapped.

                    "Olmstead" is, of course, the 1999 US Supreme Court decision in which the US Supreme Court held that unnecessary institutionalization of people with disabilities amounted to discrimination under the Americans with Disabilities Act (ADA).
                     
                     The Ridiculous, Ridiculous Reality
  • ​DOJ doesn't have the resources to enforce Olmstead consistently, effectively, & uniformly across the country;
  • What about Disability Organizations?  They are usually strapped for time & money too.
  • What about Other Legal Organizations or Unrelated Law Firms  -- well, sometimes and they may need a lot of support in what can be esoteric areas of the law.
  • Now the 2010 DOJ  Comprehensive Settlement Agreement with Georgia involving Mental Health & Developmental Disability Services was Supposed To Serve As A Template for the States.
  • Well, certainly Colorado didn't follow that -- probably didn't even know about it -- and most States didn't follow it either.
  • Our CO MI Class Action was a combined Declaratory Judgment & Injunction Relief Action which did require named plaintiffs.
  • Unfortunately fr​om our perspective that opens up this Pandora's Box of procedural nitpicking -- that really is at bottom a Systems Case & really SHOULDN'T HAVE TO GO THROUGH THE COURT SYSTEM AT ALL
  • It seems to us that the principles in the 2010 DOJ Findings Letter to Delaware should be enforced  against all the States administratively with the States having the ability to seek exceptions for good cause shown.

DOJ has already laid Important Groundwork .  .  .

Current status of olmstead enforcement/compliance 
activities in Colorado

  • We dismissed without prejudice our MI Olmstead Complaint in the Summer of 2016.
  • In January 2017, Governor Hickenlooper's Office proposed:
    • A Olmstead Compliance Work Group that would be inclusive of all disabilities not just mental illness; 
    • In the Governor's State of the State, he spoke of a "Comprehensive" Behavioral Health Care Plan.
    • We are waiting to hear back from the Governor on the specifics with regard to time, place, etc.

"Bringing to Scale to Meet the Need" AS A MATTER OF LAW

Within their service array, Delaware’s existing community system is already providing services such as Assertive Community Treatment programs (“ACT”) and scattered site supported housing that are essential to achieving the requirements of Olmstead.

Thus, in most respects, what is needed is not new to the system, but rather a phasing out of dated models to be consistent with appropriate practices and bringing to scale those community programs that are already providing effective integrating services.

Accordingly, providing community services individuals in or at risk of entering DPC would work only a reasonable modification of the State's program. Olmstead, at 603. 
                 See:
  • 2010 U.S. Dept. of Justice Findings Letter to Delaware (see especially beginning @ p. 8)
  • Technical Assistance from the World Health Organization (WHO) on "Scaling Up"  -- it's not all relevant and a surprising amount of it is relevant