In 1999 two women with developmental disabilities spoke up for themselves and said that was not alright for them to be institutionalized when they could live in the community. The Supreme Court agreed. In Omlstead v. L.C., 527 U. S. 581, or the Olmstead decision, the Supreme Court held that Title II of the Americans with Disabilities Act (ADA) prohibits the unjustified segregation of individuals with disabilities, providing Lois Curtis and Elaine Wilson a chance to exercise their right to live in a community-based setting with supports. In 2012, advocates working on behalf of more than 2,000 adults in sheltered workshops filed a class action lawsuit against the state of Oregon, stating that the services they received in those workshops unnecessarily segregated them. The United States Court agreed.
Advocates have shaped a path of full integration for individuals with developmental disabilities. Right here in Ohio, parents and advocates were responsible for the creation of what we know today as county boards of developmental disabilities in 1967. Lawsuits in the 1980’s led to the downsizing of several state-run institutions in favor of community-based supports funded by local county boards of DD.
What is Olmstead?
Olmstead specifically calls on public entities to provide community-based services to persons with disabilities when (a) such services are appropriate; (b) the individual does not oppose community-based services; and (c) community-based services can be reasonably accommodated. The Supreme Court state the ruling “reflects two evident judgments.” First, “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” Second, “confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.”
Olmstead further mandated public entities to reasonably modify their policies, procedures or practices when necessary to avoid discrimination and develop a “comprehensive, effectively working plan for placing qualified people in less restrictive settings.”
In 2009, the tenth anniversary of the Olmstead decision, President Obama issued a proclamation launching the “Year of Community Living”, and directed the Civil Rights Division to increase its enforcement efforts. “The Olmstead ruling was a critical step forward for our nation, articulating one of the most fundamental rights of Americans with disabilities: having the choice to live independently,” said President Obama. “I am proud to launch this initiative to reaffirm my Administration’s commitment to vigorous enforcement of civil rights for Americans with disabilities and to ensuring the fullest inclusion of all people in the life of our nation.”
What is the most integrated setting?
The most integrated setting is defined as one that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible. Integrated settings provide opportunities for all people to work, live and learn in the greater community. Individuals with disabilities have the right to access community activities and opportunities at times, frequencies and with persons of their choosing and to have a choice in their daily life activities.
The ADA’s integration mandate under the Olmstead decision is implicated when a public entity provides its services in a manner that results in the unjustified segregation of persons with disabilities. It is unjustified when community-based services are appropriate, the individual does not oppose community-based programs, and community-based programs can be reasonably accommodated. The Olmstead decision applies when a public entity 1) directly or indirectly operates facilities or programs that segregate individuals with disabilities, 2) funds the segregation of individuals with disabilities in private facilities, or 3) through its planning, system design, funding, or service implementation practices, promotes or relies upon the segregation of individuals with disabilities.
When is segregation unjustified?
To determine if a community-based setting is appropriate, a reasonable and objective assessment is one, but not the only, option. Assessments must be made to identify an individual’s needs and supports necessary for them to succeed in an integrating setting, not to rule a person out of community-based supports. The individuals can present their own evidence that an integrated setting is appropriate as well.
To determine that an individual does not oppose a community-based setting, public entities must provide the opportunity to make an informed choice. Individuals and families are often reluctant to try integrated settings because they have often been told repeatedly by care professionals that they are not capable of successful community integration and have been given little information about supports that would make them successful. Public entities must provide information about benefits of integrated settings, facilitate visits or experiences in integrated settings, or offer opportunities to meet with those who are living, working or receiving services in integrated settings. Public entities must also make reasonable efforts to identify and address any concerns or objections raised by the person or his/her family.
When a community-based setting is appropriate and the individual is not opposed to an integrated setting, a public entity’s requirement to provide services in the most integrated setting can only be excused when the modification would result in a “fundamental alteration” of its service delivery system. The public entity must prove that the allocation of resources would make the distribution of resources inequitable.
- Does the Olmstead decision impact day programs?
While the first ten years of the Olmstead decision focused its enforcement on residential settings, recent investigations and settlement agreements have concluded that the ADA’s language brings within its scope anything a public entity does, including segregated, non-residential employment and vocational programs. In 2012, the Department of Justice found the State of Oregon failed to provide employment and vocational services in the most integrated setting appropriate to individuals’ needs, which violates ADA.
Oregon is a leader in the nation in providing services to individuals with developmental disabilities in community residential settings, as it does not have any state-operated institutions for people with developmental disabilities nor does it fund privately-funded institutions. However, the Olmstead decision requires people with disabilities to be given more than the opportunity to be integrated into the community than just the mere transition into integrated residential settings. Olmstead mandates that individuals with disabilities have the right to live integrated lives, by participating in all aspects of community life.
Even though Oregon, like Ohio, is an Employment First State, the investigation found that most individuals whose employment or vocational services funded by Oregon remain unnecessarily, and often indefinitely, confined to segregated sheltered workshops where they often have little opportunity to interact with non-disabled people, other than paid staff. The investigation found that the state failed to develop a sufficient quantity of community-based employment and vocational supports, that the state directs its resources to segregated sheltered workshops rather than community-based employment services and supports, and its administrative methods unnecessarily require persons with developmental disabilities to attend sheltered workshops.
The investigation resulted in six findings:
- Sheltered workshops are segregated settings: sheltered workshops did not provide participants opportunity to interact with non-disabled persons. While staff were caring and professional, sheltered workshops functioned much like institutions. Persons engaged in highly repetitive, manual tasks with a fixed schedule and designated breaks. Sheltered workshops do not provide short-term trainings to prepare individuals for integrated employment, and for most participants, sheltered workshops represented permanent employment placement. Physical features of workshops mirrored institutions, containing separate office spaces, lunch spaces, conference rooms and restrooms for paid staff, apart from the workshop space. Workshops lacked desks or lockers for personal items, lacked natural light, and were located where persons cannot easily leave the facility to go to lunch or for a break. Wages of sheltered workshop participants averaged $3.72 per hour, however over 52% of participants earn less than $3.00 per hour and some only earn a few cents per hour.
- The majority of Oregon’s employment and vocational services are delivered in sheltered workshops: 61% of adults who receive employment and vocational services received at least some of their services in a sheltered workshop. Less than 16% of adults received services at any time in supported employment settings. The number of hours expended for each type of services proved a stark differential between resources dedicated for integrated and segregated employment with less than 10% devoted to integrated employment.
- Many persons served in sheltered workshops could be served in individual supported employment: Oregon’s Employment First Policy states that “everyone can work and there is a job for everyone. Our job is to be creative and tenacious in providing support.” The investigation found hundreds of workshop participants who had similar disabilities and level of care to that of individuals who were successfully supported in integrated employment settings. In addition, the investigation found no evidence that individuals in sheltered workshops oppose community-based employment and that few persons were provided a meaningful and informed choice of supported employment services through their service planning.
- Oregon administers its employment and vocational services system in a manner that segregates persons with disabilities in sheltered workshops: The investigation found that Oregon did not develop adequate capacity to provide integrated employment services to all persons in sheltered workshops, or who are at risk of entering workshops, who could benefit them and would not opposed being served in the community. The investigation found a lack of meaningful or financial incentive to encourage the movement of individuals from a sheltered setting to a community setting. There was also a lack of policies, practices and omissions that furthered the unnecessary segregation of persons with disabilities in sheltered workshops. Oregon’s Vocational and Rehabilitative Services provides funding for job training and other vocational services in integrated settings, however because OVRS is evaluated based on the number of successful employment outcomes, it is easier to find a person ineligible than to attempt to find the person a job. In addition, it was found that service coordinators did not interact with supported employment providers to identify and locate employment opportunities.
- Persons with disabilities exiting the school system are at risk of placement in sheltered workshops: Oregon failed to present transition-age students with viable alternative to sheltered workshops. Further, students were not identified early enough as needing transition services to prepare them for transition into integrated work.
- Serving persons with disabilities in integrated employment settings can be reasonably accommodated: Type of services needed to support integrated community-based employment already exist in Oregon. The state could direct Medicaid and other funds that it already spends on sheltered workshops to provide services to individuals in integrated settings.
The Oregon ruling recognizes that sheltered workshops may be permissible placement for some individuals who choose them. However, the state’s historical over-reliance on sheltered workshops has prevented people who are capable of and do not oppose community employment from realizing these opportunities. To remedy the violation of ADA, the state must develop sufficient supported employment services to serve any individuals who is capable of and wants to be served in the community and implement an effective plan to discharge and transition individuals to community-based integrated employment settings.
Assistant Attorney General Thomas Perez stated, “With regard to employment, the Division has expanded its Olmstead work to look beyond just where people live to examine how people live and spend their days.” Perez continued, “Simply moving someone from an institution to a community-based residence does not achieve community integration under Olmstead if that person is still denied meaningful integrated ways to spend their day and is denied the opportunity to do what so many people do – pursue competitive employment in the community.”
The Oregon settlement agreement set a precedent, which led to settlement agreements in Virginia, Georgia and Rhode Island as well as investigative findings in Mississippi and New Hampshire, requiring those states to expand opportunities for integrated employment.
How does Olmstead impact Summit County?
Ohio, like Oregon, is an Employment First state and while employment should be the goal of every working-age adult, Ohio spends the majority of it resources and provides the majority of its employment and vocational services in sheltered workshops. In Summit County less than ten percent of adults served in employment and vocational services are provided services in center-based setting. Summit County data also supports the fact that individuals who are placed in center-based settings rarely leave those settings.
In Ohio, nearly half of individuals supported by county boards of developmental disabilities state that they want a job in the community, yet only 10% actually do and even less have community employment as a goal in their individual service plans.
Summit County, much like the rest of the nation, needs to redirect its resources in a way that more equitably funds integrated community-based employment services that will enable those with disabilities to work, live and
learn as equal citizens of their community. Lessons learned from other states who implement their Olmstead settlement agreement will help pave the path toward a fully integrated life for thousands of adults and children in Summit County.