The New Freedom Initiative

NFI 2001

• On June 18, 2001, President Bush signed the New Freedom Initiative

• The initiative is a nationwide effort to remove barriers to community living for people of all ages with disabilities and long-term illnesses.

• This initiative indicated that the executive branch was behind the deinstitutionalization efforts

Demonstrations of the Commitment to the NFI

• Congress has committed funds to help the deinstitutionalization movement

• These focus of the programs varies

• These many different efforts reflect the many different visions people have towards the implementation of Olmstead

Federal Aid for Infrastructure changes

• Examples of grants and programs for infrastructure change:– Real Choice

Systems Change– Demonstration

Grants– Interview with

Equip

States’ Efforts Towards

Implementation• The onus for implementation

is on the States• Here are some of the efforts

made by the states to date:– Ohio’s Housing as Housing– California’s The Village

Integrated Service Agency– Maryland’s Housing Unlimited– And Illinois…

Professor Ed Kraus

• Why is it important?– Three

Major Points

Post Olmstead Changes

• January 2000: State Medicaid directors were urged to plan for moving people with disabilities into community settings.

• June 2001: Executive Order 13217 from George W. Bush: Community-Based Alternatives for Individuals with Disabilities.

“Money Follows the Person” Program

• 2005: The Federal Deficit Reduction Act created a “Money Follows the Person” demonstration program to address funding concerns.

• How it worked:– When someone left an institution, the

money being spent to care for that person would follow that individual to his or her community-based treatment center, or whatever other form of care that individual chose.

“Money Follows the Person”

Implementation

• 2007: Through the MFP Program, the government issued $1.4 billion in grants to 30 states to transition 37,731 individuals out of institutions by 2011.

Community Choice Act

• 2007: the Community Choice Act was introduced. – purpose?

• January 2008: Senator Barack Obama called the Act, "vitally important to the independence, community integration, and equality of hundreds of thousands of Americans with disabilities.” – Status of bill?

10 Years Later…

• July 2009 was the 10-year anniversary of the Olmstead decision.

• The imminent health care changes in the United States have caused disability rights advocates to rally to ensure that they are not forgotten in all of the changes.

Ligas ex rel. Foster v. Maram

• Brought in Illinois in 2005• To determine whether

Illinois is in compliance with the law.

• Reflects the States’ current difficulty in implementing Olmstead

Ligas• Brought by 9 people with DD and

reside in private state-funded institutions, or who are at risk of being placed in institutions.

• Requested and were denied community services by the state of Illinois.

• Made repeated requests to be placed in small community residential homes, but were denied, and so they remain in institutions.

Stanley Ligas

• Stanley Ligas is 41 years old, has a job, and can balance his own checkbook.

• Wants to leave his 96-bed facility.• “I know how to use money. I work at

Popeye’s chicken. I want to live in an apartment with someone else. I would like to live by my sister. I don’t have a choice right now.”

Hope of Ligas Outcome

• To have a broad impact for all people with disabilities, not just the named plaintiffs. – Strategy: certify a class to require

the state to provide community-based care for members of the class.

– Class included: people in institutions, or people at risk of living in institutions, who could live in the community.

The Intervenors

• A group of people sought to intervene to ensure that the disabled would have a choice between institutions and community-based care.

• This group contained representatives of people with disabilities who were worried that they would be forced to live in community-based care if the plaintiffs succeeded.

Response to Intervenors

• To avoid the misconception, the class was narrowed in the amended complaint filed in September of 2009.

• The class was re-defined as those “who would not oppose community placement.”

Illinois Numbers• Ranked dead last out of all the States

and the District of Columbia in serving people with developmental disabilities in small community settings.

• Illinois: – Houses nearly 6,000 people with

developmental disabilities – In 250 private institutions across

the State– And thousands of other individuals

are at risk of institutionalization.

Interview

• “Conditional Right”– “Wiggle room” is disturbing

• Good language:– “Discrimination to unnecessarily

institutionalize…”• Cautious approach because of history

of discrimination

Interview Cont.

• Bad - Resources are being used in Illinois to prop up institutions that are failures (Howe)

• $ should/could be used to create a better community-based approach

• Illinois is “30 years” behind in its efforts towards the disabled (even Indiana is better)

• Sources need to be used better– Money is tight– Quality control needed

Interview Cont. -Media-

• Media can go both ways. - Has generally been helpful lately

• The recent nursing home article:- Makes patients look like perpetrators- Example of how media can hurt the issue

• Not trying to force out the people who want to stay in the institutions: common misconception

• Even conservatives acknowledge the benefits of community-based living

Interview Cont.

• Institutions may start to gradually disappear- Many the providers (of institutions)

looking for ways to convert their business’ into community based forms

• Connection to Brown is all about desegregation - Difference again is that Olmstead is a

qualified right compared with the other recognized civil rights

Perspectives on Olmstead

Similarities inOlmstead & Brown

• Many see similarities between Olmstead and Brown

• These comparisons are rooted in the mandate in each decision to desegregate

• Each case emphasized how a segment of the population was being denied their rights through segregation

Differences in Brown and Olmstead

• In what ways do you think that the cases are different?

• Constitutional v. Statutory Interpretation

• The timing of the impacts• View of the new “rights”

– Equip interview

Constitutional v. Statutory Interpretation

• Brown uses 14th amendment to find a violation of a right

• Olmstead refuses to examine a constitutional issue

• Olmstead examines the statute of the ADA to find for the plaintiffs

The Timing of the Impacts

• Brown was far-reaching and a landmark case, but it was 3 years before the first Southern school was forcibly integrated

• Olmstead was a more cautious decision, yet its impact was immediate and visible

View of the Rights

• Brown and most other civil rights cases are viewed as “fundamental” rights– Unqualified and absolute

• Olmstead is not viewed in this “fundamental” way, it is a qualified right– Equip analysis – Flexibility allowed in the

implementation– Defenses

Impact on the Homeless

• OYEZ excerpt• Efforts to decrease the need of

institutions is not a new idea• Some argue that past efforts

led to increases in the number of homeless

Homeless cont.

• It is estimated that 20% of all homeless are mentally ill

• Perfect storm for an increase in homelessness may be brewing:– Efforts towards

deinstitutionalization • Rushed efforts to comply

– Poor economy– Disorganized/disinterested

states

Tribune Article

• There are other serious problems that can result from a rushed, poorly planned effort to comply with Olmstead

• Article highlights the ways in which states will try to find cheap ways to comply

Critiques of Olmstead

• Too slow• Too fast• Risks of rise in

homelessness• The available defenses

– Qualified right

• Poor, rushed plans

Interpretations of Olmstead-Cases

• Frederick L. v. Department of Public Welfare (3d Cir. 2005)

• Arc of Washington and Sanchez (both 9th Cir. 2005)

Frederick and the “Prospective Approach”

• 3rd circuit found for the plaintiffs and rejected the states efforts to claim a “fundamental alteration” defense

• Court wanted:– Clear “working plan”– A waiting list that moved at a

reasonable pace– Working plan needs to be

implemented

Prospective Approach

• Looks to whether a state is taking integration action that is widely communicated and reasonably specific

• Pushing states forward• Potential problems:

– States could “play” the system– Low standard

Benefits of the Prospective Approach

• Gradual progress• Provides states with

flexibility– For there specific needs– In bad economies

• Does not overreach

Ginsburg and Social Change

• Olmstead is reflective of Ginsburg’s view on litigation and social change

• “without taking giant strides and thereby risking a backlash too forceful to contain [courts] can reinforce or signal a green light for social change.”

9th Circuit and the “Retrospective Approach”

• Evaluates the states deinstitutionalization progress – Pre-Olmstead data v. post-

Olmstead data

• Data will likely be limited to the 80’s and 90’s

Benefits v. Critiques• Clear data

could hold the states accountable

• Provides all sides with goals

• Data will be changing

• Low standard• Bad

comparison• Easy out for

states

How Should the Courts Enforce Olmstead

• Progressive v. Retrospective Approach?

• What about flexibility ?• What do you think about

Ginsburg’s views on how the Court should achieve social change?

• Is Olmstead a reflection of Ginsburg’s quote or a weak ineffective attempt?