Blog Posts

Olmstead and Institutionalization of People with Disabilities---the Need for Better Understandings & Treatments

9/21/2024

Val's Take

The primary institutions where people with Neuro-Developmental Disorders, Psychiatric Disorders and Brain Injuries find themselves are Jails and Prisons.
When the Criminal Law was developed over hundreds, thousands of years --- the question of "INTENT" or "MENS REA" was a sophisticated question.
It is still an important question,
In 2024, it is not the question we should end with.
What are the biological mechanisms that are causing this INTENT?
- If the person's Microglia are eating the person's brain synapses --- that might be important.

I do think there is a HARM REDUCTION component to Olmstead.

All secure placements are not created equal.

Feds step up with resources to address behavioral health in homelessness or at risk of homelessness

9/13/2024

United States Interagency Council on Homelessness Announces ---

New Federal Resources for Addressing Behavioral Health Needs of People Experiencing or At Risk of Homelessness

The need for olmstead compliance measures

9/11/2024

Val's Take

I had been of the opinion that the US Department of Justice guidance on Olmstead was sufficient.
It seems that after Chevron was struck down by the US Supreme Court this year, it would be better to have Congress address State non-compliance with Olmstead.
That could get a lot of issues out on the table and set some priorities.

HOUSING
The big challenge had been Housing and still is, but HUD has really stepped up with "Olmstead" housing vouchers.

I think if the Feds and the States can agree to consistently cover Housing for people with disabilities with Long Term Care Needs --- great.

Municipalities and Counties are generally in the mix, too and often on the front lines.

Recently, the Biden Administration issued new rules to address COMPLIANCE with the 2008 Mental Health Parity & Addiction Equity Act.

Were the private insurance companies doing nothing on mental health and addiction?--- No.

But there was not substantial compliance with the law.

The situation is similar with Olmstead and the States.

HEALTHCARE & EDUCATION--
NUMERIC STAFFING

Staffing problems exist throughout the society.
People are aware at least to some degree of staffing problems in Healthcare and Education.
I have my own take on this:
- I think some (not all) of these problems bleed over to Law Enforcement and the Court System.
- We're horrified and rightly so in some cases -- I think there's an argument to be made that Law Enforcement and the Court System are being "Scapegoated" for inadequate staffing in Healthcare and Education.

Staffing

EMPLOYMENT
Employment has to be included but there needs to be more support for Employers.

"Olmstead" Housing vouchers greatly improved

8/29/2024

with Waitlists and Admissions Preferences

Richard Cho

U.S. Department of Housing and Urban Development

Senior Advisor for Housing and Services

Val's Take:

THIS IS HUGE!

States have not substantially complied with the HOUSING component of Olmstead.

Olmstead is the 1999 US Supreme Court decision holding that the Americans with Disabilities Act prohibited the unnecessary institutionalization of people with disabilities.

Olmstead specifically assumed a State Plan for People with Disabilities, and required that plan to be:

Comprehensive
Effectively Working, and
Waitlists moving at a Reasonable Pace

Currently, Olmstead and subsequent caselaw are designed to prevent:

Unnecessary institutionalization of people with disabilities, or
The risk of institutionalization.

Housing is expensive! If you live in Colorado, you know that.

People with Disabilities and States have needed the FEDS to step up --- and they STEPPED UP.

We are grateful!

Hud takes action to Support Community Living for People with Disabilities

HUD’s Mainstream Voucher program is a special purpose voucher for people with disabilities.

I often think of them as “community living” vouchers or “Olmstead” vouchers.

But until now, there were challenges with using these vouchers to quickly connect people with disabilities leaving institutional settings or homelessness to community based housing and supportive services.

I’m excited that today [August 27, 2024] U.S. Department of Housing and Urban Development announced new requirements and flexibilities for Mainstream Vouchers that make them an even more effective tool for supporting community living.

First, public housing agencies that administer Mainstream Vouchers can now establish separate waiting lists and also establish admissions preferences that prioritize people referred by the services agencies that support community living or ending homelessness for people with disabilities.

Second, PHAs [Public Housing Authorities] must allow at least 120 days to help people find an accessible and affordable unit, along with 90-day extensions.

These flexibilities and new requirements open the door to new partnerships between PHAs [Public Housing Authorities] and Medicaid, Centers for Independent Living, Continuums of Care, and state mental health and IDD [Intellectual or Developmental Disability] agencies to help further the goals of Olmstead v. L.C.

Very proud of this!

[Why did the U.S. Supreme Court Justices in 1999 assume the States had a "State Plan" for People with Disabilities?

Georgia (and other States) told them that.

Further, that is why the Justices held that the States could not be required to make a "FUNDAMENTAL ALTERATION" to the STATE PLAN.

You can imagine that has been subject to considerable interpretation.

The big flies in the ointment: MOST STATES don't have a comprehensive, effectively working plan for people with disabilities or waitlists moving at a reasonable pace.]

Federal Housing Vouchers as a Key to STATE Olmstead Compliance

8/3/2024

Val's Take

Colorado's Nursing Home Transition Program was designed to transition nursing home residents to the community where appropriate.
I remember asking --- what about housing. They were flush with housing vouchers. That wasn't the most pressing issue.
In that situation, the Feds and the States were bearing very high nursing home costs and --- there was a clear financial benefit to the Feds and the States to transition people with disabilities out of nursing homes if they could safely live in the community.
In contrast, Chronic Homelessness often involves people with some type of Neuro-Developmental or Psychiatric difference/disability and an IQ over 70.

When it comes to homelessness, it's Municipalities and Counties that are bearing the brunt of the costs --- as it relates to governmental entities.
The people themselves, their families and the communities are bearing large costs as well.
The Feds, including CMS (Centers for Medicare and Medicaid Services), US Interagency Council on Homelessness, etc. and scattered disability advocates may appreciate the responsibility of States to provide Housing under Olmstead.
Outside the initiated, most people are not going to know much about Olmstead.
It appears that Denver is getting Housing Vouchers.
It is important that the Feds make available Housing Vouchers and Housing + Care Vouchers to meet the need to address Chronic Homelessness.
In Denver, Mayor Mike Johnston and his staff learned the hard way (as so many of us have), of the importance of Case Management.
The State has also identified Case Management as a Critical Issue.

Chevron, the ADA & Olmstead and the need for State Statutes & ReGulations

7/11/2024

Val's Take:

I don't know that there is anyone "gunning" for Olmstead the way conservatives targeted Roe v. Wade and Chevron.
Disability services have often enjoyed bipartisan support.
Olmstead was not decided on constitutional grounds, but on statutory grounds and associated regulations, specifically Title II of the Americans with Disabilities Act and the Integration Mandate.
The "balancing of equities" of people with disabilities and the State in the Olmstead decision is Solomon-like.
Further, the decision announced by Justice Ruth Bader Ginsburg in 1999 is a landmark decision in disability law, but it actually is extremely deferential to States.
The US Department of Justice provided "Guidance" not even regulations regarding enforcement of Olmstead.
Agency "Guidance" didn't go through a formal rule-making process as regulations do.
That "Guidance" is not particularly prescriptive, but does say that Olmstead Plans should provide measurable goals, reasonable time frames and funding to support the plan.
The "Olmstead Plan" is the State's defense to a lawsuit under Title II of the ADA alleging unnecessary institutionalization of people with disabilities.

Further, when talking about Olmstead Plans there are many Stakeholders, including:

Providers,
Taxpayers,
Family Members,
Community Organizations,
Law Enforcement,
Municipalities and Counties,
Etc.

in addition to the State and People with Disabilities.

Code of Federal Regulations -- Title 28
PART 35—NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND LOCAL GOVERNMENT SERVICES
Authority:5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134, 12131, and 12205a.

We need State Statutes and regulations to provide the specificity sufficient to address process issues, provide transparency and accountability.

Olmstead Plans can be thought of as a Portfolio of several Projects:

Housing
Employment
Education
Transportation accessibility
Service Provision
Etc.

Historically, many states did not create an Olmstead Plan and if they did it was vague and almost always lacked "measurable goals."

Further, the plan was not modifiable often because it wasn't really doing anything.

To me, Olmstead Planning needs fair time frames to occomplish specific objectives with measurable goals and CONTINUOUS FEEDBACK on accomplishing those goals that is posted on a State Public Website.

Further, the Olmstead Plan or Sub-Project Plans need to be relatively easy to modify.

Chronic Homelessness and Olmstead

7/4/2024

Val's Take/Conjecture

Long Term Homelessness is often indicative of serious cognitive problems involving neuro-developmental disorders, psychiatric disorders, substance issues and/or brain injury, and
Inadequate health and social supports.

We do currently have the "POINT IN TIME COUNT" for Homelessness.
We also count those people who are "CHRONICALLY HOMELESS."
We need to drill down on that "CHRONICALLY HOMELESS" number and build in some Voluntary Individual Assessments.
And share the "AGGREGATE DATA" publicly and also with permission provide connections to appropriate Medicaid entities and providers.

National Development Team for Inclusion: Research on Homelessness & Neurodiversity.

Trying to address pretty much anything while living on the streets is difficult, but adding on to that serious health challenges --- it's ridiculous.

We are seeing Homelessness as a MORAL ISSUE which is important --- it is also a PUBLIC HEALTH ISSUE for the individuals as well as the communities involved.

Some understandings of these public health issues have not been great and that has led to a lot of bad things.

Those understandings appear to be improving in a big way but ---- it is taking years and decades to incorporate the research.

In the meantime, the US Supreme Court decided Olmstead in 1999.

Homelessness, Harm reduction & Long Term cARE

6/14/2024

Val's Take/Conjecture

I would say to Denver, Aurora and the State --- the people who are chronically homeless in Colorado generally are contending with various combinations of:
- Neuro-Developmental Disorders
- Psychiatric Disorders
- Brain Injury, and
- Substance Issues
Those are serious health issues, some requiring long term care.
Mike Johnston's "We're gonna help people get back on their feet" ---
- Seems absolutely clueless as to the serious and complicated health issues people are actually contending with.
Aurora's "Tough Love" Approach and a "HARD COURT" --- that is maybe not that "hard" ---
- Still seems an inappropriately punitive way to deal with health issues --- even if it is trying to be a step up from not so "benign neglect."

9 News Next: Aurora City Council Approves "Tough Love" Approach to Homelessness

Bottom Line:

Chronic Homelessness is a State Olmstead Issue.

What is the scope of the supported Housing Obligation Under Olmstead in Colorado?

6/13/2024

An Olmstead Plan is a Project --- maybe the State could assign some project managers to work with stakeholders

because it is not getting done

Val's Take

Some states have pointed out rightly that the Olmstead Decision does not apply to every person with a disability.

Olmstead is designed to prevent the unnecessary institutionalization or risk of institutionalization of "people with disabilities."
Medical judgment plays a role in this in determining whether the person with disability can safely live in the community outside an institution.
- I think that medical judgment can be challenged, but generally the burden is going to be on the person challenging the instant medical judgment.

There are a lot of ways one could think of an Olmstead Plan --- one way is as a Work Breakdown Structure in Project Management --- maybe not quite as detailed, but it needs to have Measurable Goals, Reasonable Time Frames and Funding to support the plan..

The State of Colorado is very familiar with Project Management in a wide range of areas.

Especially in the area of Supported Housing, we need the State to bring that expertise to the table and get us a Supported Housing Plan for People with Disabilities who are Institutionalized or at risk of institutionalization and medical professionals support community living.

The American Bar Association begins to consider Olmstead & Criminal Justice

5/30/2024

ABA Section on Civil Rights & Social Justice
The Future of Olmstead: 2020 & Beyond

Criminal Justice discussion begins at 32:20

ABA Transcript

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Olmstead and Institutionalization of People with Disabilities---the Need for Better Understandings & Treatments

Feds step up with resources to address behavioral health in homelessness or at risk of homelessness

The need for olmstead compliance measures

"Olmstead" Housing vouchers greatly improved

Federal Housing Vouchers as a Key to STATE Olmstead Compliance

Chevron, the ADA & Olmstead and the need for State Statutes & ReGulations

Chronic Homelessness and Olmstead

Homelessness, Harm reduction & Long Term cARE

What is the scope of the supported Housing Obligation Under Olmstead in Colorado?

The American Bar Association begins to consider Olmstead & Criminal Justice

Olmstead Law & Order Thursday

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