Via Steve Gold:

"Forced Institutionalization of People With Disabilities Is Illegal" -
DOJ and Federal Court Ruling.

By Gail Zoppo - Jun 25, 2010 reprinted from DiversityInc.

The U.S. District Court in Jacksonville, Fla., ruled this week that
Michele Haddad must be provided with services that will allow her to stay
in her home. Haddad, who has a spinal-cord injury caused by a motorcycle
accident with a drunk driver three years ago, was at risk of being forced
into a nursing home because of changes in her caregiver situation.
Although the 49-year-old woman has been on the waiting list for Medicaid
community-based waiver services for two years and had alerted the state of
her need, she was told that the requested services would only be available
if she was admitted to a nursing home for 60 days.

In Haddad v. Arnold, the plaintiff argued that she would suffer
irreparable harm if forced to enter a nursing home.

The court agreed, ordering the state to offer Haddad community-based
services. The reason: Segregating people with disabilities is a form of
discrimination, as found in Olmstead v. L.C. This landmark
disability-rights decision determined that isolating people with
disabilities in institutional settings deprives them of the opportunity to
participate in their communities, interact with individuals who don't have
disabilities and make daily choices. The ruling also acknowledged that
unnecessary institutionalization stigmatizes people with disabilities.

The Olmstead decision, which marks its 11th anniversary this week, is not
the first such case that the U.S Department of Justice has filed briefs.
The DOJ is involved in several other cases in Illinois and New Jersey, as
part of its mission to end discrimination against people with
disabilities.

"In the Olmstead case, the court recognized that the unnecessary
segregation of individuals with disabilities stigmatizes those individuals
as unworthy of participation in community life," stated Assistant Attorney
General for the Civil Rights Division Thomas E. Perez. "By supporting Ms.
Haddad in this case, we seek to ensure that individuals with disabilities
can receive services in the most integrated setting appropriate, where
they can participate in their communities, interact with individuals who
do not have disabilities and make their own day-to-day choices."

The Department of Justice's involvement in these cases reinforce the Obama
administration's national efforts to protect the rights of all people.

"This work is a priority for the Civil Rights Division, and we are
committed to aggressive enforcement of Olmstead so that we can build upon
progress made over the last 11 years," said Perez earlier this week. "But
our work is only one piece of a larger, administration-wide effort to make
the promise of Olmstead a reality for individuals with disabilities
nationwide. Real reform requires a holistic approach. As a lifelong public
servant, I recognize that the most vexing problems a government faces are
those that require unprecedented interagency collaboration and
coordination. The unnecessary and illegal institutionalization of
individuals with disabilities who would be better served, and better able
to contribute to their communities, if they were provided services in
integrated settings, is one of those problems."

Double Victory from HHS OCR and Democratic National Committee

For Immediate Release: February 15, 2010

For Information Contact

Jennifer McPhail 512-627-5868

Nancy Salandra 215-779-1014

http://www.adapt.org/

DNC Resolution Pledges Olmstead Support; HHS OCR Agrees to Meet

ADAPT's Defending Our Freedom Campaign: Two Weeks, Two Victories

Philadelphia, PA - Two weeks into ADAPT's Defending Our Freedom Campaign, there are already two victories. One, a resolution passed by the Democratic National Committee (DNC), has its roots in ADAPT's four-day and four-night protest vigil last July, held outside the DNC headquarters in Washington, D.C. despite torrential rains and no shelter for activists. The second victory is a meeting with staff from the U.S. Health and Human Services Office of Civil Rights (HHS OCR) scheduled for mid-April just prior to the spring ADAPT action in Washington.

On Thursday, February 4, ten members of ADAPT from across the nation attended the DNC Resolution Committee meeting in Washington, D.C. The committee unanimously passed a resolution that states, in part, "WHEREAS, efforts must be made on the state and federal level to eliminate institutional biases that unfairly discriminate against Americans with disabilities in obtaining long term service and support in programs such as Medicaid ... the DNC will encourage and support efforts to vigorously enforce the Supreme Court's Olmstead decision."
The Olmstead decision affirmed provisions in the Americans with Disabilities Act (ADA) that mandate people with disabilities should receive needed services and supports in "the most integrated setting," typically the community.

"Some people thought our protest outside the DNC last summer was an exercise in futility," said Jennifer McPhail, ADAPT organizer from Austin, Texas, "especially because so many of us who use wheelchairs slept outside each night, in pouring rain and wind, with only garbage bags or the occasional tarp for shelter. We had provided our own accessible porta-potty, but the DNC had it hauled away. Despite all that, we persisted in following the process laid out by the DNC, and now we have this historic resolution to show for all hell we went through last July."

Members of the DNC Resolution Committee included Christine Pelosi, daughter of House Speaker Nancy Pelosi, and Lee Saunders, assistant to AFSCME President, Gerald McEntee. AFSCME currently represents staff in many state operated institutions, but is working to support the Community Choice Act (CCA), legislation that would let older and disabled individuals choose to receive needed supports and services in their own homes instead of being forced into nursing facilities and other institutions by the institutional bias in the nation's Medicaid program. In addition to passing the resolution condemning the Medicaid institutional bias, the committee also pledged to sending both the resolution and all of ADAPT's educational materials on the CCA to every Democratic state and federal legislator in the country.

"With the resolution from the Democrats and our upcoming meeting with the folks from HHS Office of Civil Rights, we feel like we are gaining ground in this battle to become free, and stay free," said Nancy Salandra, ADAPT organizer in Philadelphia. "You would think that between this country's Constitution, and laws like the ADA, we should already have the right to live in our own homes and communities, but that's not how Congress has structured the funding for the supports we are entitled to receive. So, the resolution and the meeting are two more actions to make sure that the law is followed and our civil rights are protected."

ADAPT's Defending Our Freedom campaign continues to gather media reports of the harm being done to disabled and older Americans by state budget cuts. The campaign also welcomes stories of how people in the states are fighting back against the cuts. ADAPT is additionally encouraging people who want out of institutional settings and the people assisting them to file OCR complaints. ADAPT will follow up on those complaints at the meeting with HHS OCR and the Department of Justice (DOJ), and will hold the HHS OCR staff accountable for resolving the complaints.

Send media reports, and "fighting back" accounts and pictures to defendingourfreedom@gmail.com.

See those reports, and accounts and pictures on http://www.defendingourfreedom2010.blogspot.com/.

File a complaint at http://hhs.gov/ocr/civilrights/complaints/index.html
and send a copy to DOF.complaint@gmail.com.

Sign on to support the Defending Our Freedom Campaign at DOF.signon@gmail.com, and see the growing list of supporters at http://www.adapt.org/doflist.php.

Additional information on the Defending Our Freedom Campaign can be found at www.adapt.org/adapt-campaign.html.

NATIONAL ADAPT MAILING LIST - Adapt Community Choice Act List http://www.adapt.org/

Don't Mourn, Organize!

As the 20th Anniversary of the signing of the Americans with Disabilities Act draws near, the disability community is not busy celebrating because we are literally in a fight for our lives and our most basic freedoms.

Eleven years ago, in the Olmstead decision, the Supreme Court said that Americans with disabilities have the right to live in the most integrated setting. Yet today, states are responding to budget shortfalls by drastically cutting home and community-based services. These draconian cuts are forcing seniors and people with disabilities into nursing facilities and other institutional settings because they don’t have the services they need to remain independent.

As states cut vital services, the federal government, which is charged with protecting our civil rights and enforcing the law, is simply standing by – silent – while Americans with disabilities have their most basic freedoms taken away by the states.

The disability community cannot sit by as our freedom is negotiated away in back room budget deals. We must take action!

Defending Our Freedom is a three-prong national campaign initiated by ADAPT to organize the disability community to:

· Demand that the Obama administration fulfill its duty to aggressively protect the civil rights of disabled Americans and enforce the Americans with Disabilities Act/Olmstead decision;

· File complaints with the Health and Human Services Office for Civil Rights and the U.S. Department of Justice that document the violation of rights of individuals who have been forced into institutional settings, denied community services, or have had their community services reduced as well as complaints that document the state policies and budget cuts that violate our rights; and

· Document the disability community’s efforts to fight back against state cuts so that we can learn from each other’s efforts, rally others to join our fight, and hold public officials accountable when they do not support our freedom.


I. Defending Our Freedom: Demanding action by the Obama administration

The federal government is responsible for enforcing federal law and assuring that states comply with the Americans with Disabilities Act/Olmstead decision. ADAPT is demanding that the federal government affirmatively and aggressively enforce the Olmstead decision. To do this, the Health and Human Services Office for Civil Rights, must:

1. Accept, investigate and resolve individual and systemic complaints which document state policies and budget cuts that threaten the freedom of Americans with disabilities;

2. Develop specific benchmarks/criteria for assessing state compliance with the Olmstead decision, assess the states and publicly release this assessment on an annual basis;

3. Conduct regular, on-going compliance reviews of states for compliance with the Olmstead decision, and provide technical assistance to states to help them understand how they can voluntarily comply with the law;

4. Work with the Department of Justice (DOJ) to develop “most integrated setting” criteria for determining when DOJ will step in and affirmatively enforce the Olmstead decision;

5. With the Center for Medicare and Medicaid Services (CMS), develop guidance with CMS for the states on the Olmstead decision that requires state Medicaid programs to comply with the “most integrated setting” requirement of the ADA, including a model Olmstead Plan that assures the freedom of Americans with disabilities who want to live in the most integrated setting;

6. With CMS, review state submissions for modifying their Medicaid State Plan and HCBS waiver services for the impact that these changes will have on the state’s ability to comply with the Olmstead decision so that those changes which limit the freedom of Americans with disabilities are not approved by CMS;

7. With CMS, modify Section Q of the Minimum Data Set so that people who indicate they want to return to community living are actively assisted to do so;

8. Publicly report on the progress that has been made so that these results can be discussed in a potential meeting between Georgina Verdugo, the HHS/OCR Director, and ADAPT representatives.

Take action: ADAPT is urging organizations across the country to sign on in support of these demands. If your organization would like to support this campaign, email DOF.signon@gmail.com.

If you go to the ADAPT page for the campaign (www.adapt.org/adapt-campaign.html), you can see the list of organizations that that have signed on in support of this campaign.

II. Defending Our Freedom: Filing complaints to protect our freedom

The Health and Human Services Office for Civil Rights and Department of Justice are charged with protecting the civil rights of Americans with disabilities who want to live in the most integrated setting. Although they are able to affirmatively enforce the law without specific complaints, these agencies typically take action only when complaints are filed. We need to file complaints that document the violation of rights of individuals who have been forced into institutional settings, denied community services, or have had their community services reduced. We must also file complaints that document the state policies and budget cuts that steal the freedom to we are entitled under the Olmstead decision.

Take Action: ADAPT has prepared a form you can download and fax to us toll free at 1-888-324-0787. We will forward your complaint to the Health and Human Services Office of Civil Rights, the appropriate HHS/OCR Regional office, and the Department of Justice. If you choose to file your complaint yourself, please notify us at DOF.complaint@gmail.com that you have filed a complaint and, if possible, send us a copy.


III. Defending Our Freedom: Fighting back and sharing our stories

Even though there are different battles in individual states, we are fighting the same fight. To strengthen these efforts across the country, our campaign will collect personal and state stories about the effects of budget cuts and the efforts to fight back against them. ADAPT has created a website (http://www.defendingourfreedom2010.blogspot.com/) where we can post information and pictures of your advocacy. This will create a public record of the disability community’s efforts to stop cuts and hopefully inspire others across the country to speak up and speak out, too. State advocates can also submit individual calls to action so that we can support each other’s efforts.

Take Action: Send submissions to defendingourfreedom@gmail.com. And remember to keep up on what groups are doing by reading the blog: http://www.defendingourfreedom2010.blogspot.com/.