DOJ, Olmstead, ADA and Your State. Information Bulletin #313 (6/2010)

The United States Department of Justice recently filed a brief in the case Haddad v. Arnold in the U.S. District Court for the Middle District of Florida. Because many of the arguments Florida raised as its ADA defense are similar to what occurs in your State, we want to share some of the DOJ positions.

Ms. Haddad is a woman with quadriplegia who had applied for Medicaid waiver services several years ago, who was placed on a "wait list," who was at risk of being institutionalized, and who does not want to go into a nursing home. Here is what DOJ wrote:

*  "The ADA stands entirely apart from the Medicaid Act and establishes <  its own independent requirement that, when a state provides any services to individuals with disabilities, it must do so in the most integrated setting appropriate to the individuals' needs unless doing so would fundamentally alter the nature of the service."    A state can establish a fundamental alteration defense by demonstrating it has, quoting Olmstead, a "comprehensive, effectively working plan for placing persons with ...disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated."

*  With regards to a "comprehensive, effectively working" plan, DOJ   explained: "Defendants point to no evidence of the plan's ...   implementation date ... or stated any measurable goals for the   deinstitutionaliztion of persons with disabilities.  Instead, in a   piecemeal and post hoc fashion, the Defendants offer a parade of   affiants outlining the [existing] Florida Medicaid program's various   Medicaid Waivers. This evidence falls far short of what is required to   demonstrate that a state has a comprehensive, effectively working plan."

*  With regards to a waiting list that moved at a reasonable pace, DOJ   noted three elements:

    1.  TBI/SCI Waiver "has remained capped at 375 persons and will  remain at this cap until at least 2012," the final year of the  waiver application.

    2.  "any assessment of the relative merits of a state's effort to deinstitutionalize individuals with disabilities must be viewed not in dollar' terms, but in actual evidence that the plan is  effectively ... preventing [individuals with disabilities] from becoming a risk of institutionalization."

    3.  Such "actual evidence" requires "measurable evidence of  expansion' in view of the number of individuals on the TBI/SCI waiting list, or the length of time that these individuals remain on the waiting list."

*  With regards to an individual jumping the line or displacing people,   DOJ pointed out that Ms. Haddad was not "circumventing" any procedures,  but she "had in fact followed these procedures, but her efforts were to  no avail. Ms. Haddad remains on the waiting ist despite her first joining it in 2007."

*  DOJ concludes that "Ms. Haddad's request -- that the state provide her   with less-costly community-based services, without requiring her to   first enter a nursing home... -- is eminently reasonable."

DISABILITY ADVOCATES:

Each of these principles apply to your State - no "measurable goals," capped number of person in waivers that are not expanded even though there are waiting lists, "actual evidence" that the "plan" both  deinstitutionalizes and prevents unnecessary institutionalization, and "measurable ... expansion" in comparison to the numbers on a waiting list.

This DOJ brief fully comports with its arguments in its amicus brief in Disability Advocates, Inc. v. Paterson, 633 F. Supp.2d 184 (E.D.N.Y. 2009).

The ball is now in your backyard!  It's been 11 years since the Supreme Court issued the Olmstead decision.

Steve Gold, The Disability Odyssey continues