California Disability Community Action Network
DISABILITY RIGHTS NEWS REPORT
Advocacy Without Borders: Connecting People With Disabilities, Mental Health Needs, Seniors, Traumatic Brain & other injuries, People with MS & other health needs, Families, including People of color, languages and cultures, Workers, Providers, & Organizations to Rights & Unified Action
Report #057-2007  April 27, 2007 - Friday
To respond to this email, reply to: martyomoto@rcip.com   CDCAN website: www.cdcan.us

California Olmstead Implementation
* Olmstead Advisory Committee Meets Friday April 27
* Advises Schwarzenegger Administration
* Some Raise Concerns About Progress
* Impacts People with Disabilities, Seniors

SACRAMENTO - A state panel tasked with advising top Schwarzenegger Administration health and human services officials on the State's implementation of a 1999 landmark US Supreme Court decision that required the states to take steps to avoid the unjustified institutionalization of persons with disabilities and seniors, will be meeting Friday, April 27, from 10:00 AM to 4:00 PM at the Department of Rehabilitation office building in Sacramento.  The meeting is open to the public, who can attend in person or call in on a toll free line. 

Olmstead Advisory Committee Meeting
April 27, 2007 - Friday 10:00 AM to 4:00 PM
California Department of Rehabilitation - Feather River Conference Room
2000 Evergreen Street - Sacramento, CA
Toll free call in number: 1-888-790-3051  Passcode:  35806

Advisory Committee Created by Governor's Executive Order
The panel - officially known as the Olmstead Advisory Committee, was created in October 2004 by executive order of Gov. Arnold Schwarzenegger, and specifically advises Kim Belshe, Secretary of the California Health and Human Services Agency - the agency that oversees many of the departments responsible for a wide range of healthcare (including Medi-Cal), supports and services for people with disabilities, seniors, mental health needs and others. 

Secretary Belshé appointed Advisory Committee Members who represent consumers, family members, providers and advocates. Members of the committee serve on a volunteer basis without compensation (see below for full list of original members). Brenda Premo, director of the Center for Disability Issues and the Health Professions at Western University of Health Sciences and a former director of the California Department of Rehabilitation, serves as chair of the committee.

The committee is responsible for providing input to Agency on its efforts to implement the California Olmstead Plan, recommending actions to improve California's long-term care system and creating opportunities to fund expanded or new activities to support individuals with disabilities in their community. The committee meets as a full committee every three months. In the interim, the committee operates under three Work Groups charged with formulating policy recommendations in the areas of diversion, assessment/transition and data.

BACKGROUND OF THE LANDMARK OLMSTEAD CASE
* The Olmstead Decision  (Olmstead v. L. C. (1999) 527 U.S. 581) is actually named after a Georgia State Commissioner, Tommy Olmstead, whose agency, the Georgia Department of Human Resources,  was sued by two women with developmental and other disabilities, including mental health needs.  The lawsuit was originally filed with just their initials to protect their privacy - "L.C." for Lois Curtis and "E.W." for Elaine Wilson.
* Both women were originally voluntarily admitted to Georgia Regional Hospital in Atlanta, where they were confined for treatment in a psychiatric unit. Although their treatment professionals eventually concluded that each of the women could be cared for appropriately in a community-based program, the women remained confined at the Georgia Regional Hospital.
*  Lois Curtis or "L.C." filed a lawsuit in federal district court in Georgia in 1995, seeking placement in the community, against Georgia state officials under 42 U.S.C. § 1983 and Title II of the Americans With Disabilities Act, alleging that the State violated Title II in failing to place her in a community-based program once her treating professionals determined that such placement was appropriate. Elaine Wilson or "E. W." joined the lawsuit, making an nearly identical claim as Lois Curtis.
* During the time the case worked its way through the federal courts, both women were placed in the community, where they have been doing very well. The case continued because the situation could arise again.

THE FACE IN FRONT OF A LANDMARK CASE - ELAINE WILSON DIES DECEMBER 2004
* Elaine Wilson, one of the two women with developmental and other disabilities who filed the case that resulted in the landmark 1999 US Supreme Court Olmstead Decision, died December 5, 2004 around 2:00 AM at the age of 53.   Lois Curtis, the other woman with disabilities who filed the suit with Wilson, is living in community-based housing near Atlanta.
* Wilson died at Grady County Hospital in Atlanta, after complications developed from a fall in early November 2004, according to Harriet Harris, her good friend, and director of Circle of Support, Inc., a community-based organization in Decatur, Georgia, that provided residential services and support staff.  She is survived by her mother, who lives in the Atlanta area.
She told CDCAN's Marty Omoto in an interview just 1day after her death, that Wilson "... enjoyed her life so much. She had her own her place, for three years, and she was so proud of that. She had moved so many places, but just wanted to have her own place, her own home and she had that" said Harris, her voice breaking, "I can't believe she is gone."
* Harris said that Wilson was doing job readiness training, two days a week, doing her own grocery shopping, and that she progressed so much since leaving a George state hospital.
* "People said so many years ago she couldn't live in the community, but they were wrong.  With the right support, she was able to," Harris recalled in the interview with CDCAN adding that  "If you knew Elaine, you knew a person who understood struggle, hope, and the willingness to try anything regardless of the odds."
* Harris said and in remembering the historic Supreme Court ruling, she said that "we were there when they issued the final decision. And I remember Elaine saying after 'if I want to eat M&Ms, then I can eat M&Ms and nobody can tell me I can't'[in reference to the diet restrictions imposed at the Georgia State Hospital]

SUMMARY OF ACTIONS BY FEDERAL COURTS
* The federal district court in Georgia granted a partial summary judgment for the women, ordering their placement in an appropriate community-based treatment program. The district court rejected the Georgia's claim  that inadequate funding, not discrimination against L. C. and E. W. “by reason of [their] disabilit[ies],” accounted for their retention at the state institution. The federal district court concluded that under Title II,  unnecessary institutional segregation constitutes discrimination per se, which cannot be justified by a lack of funding and also rejected Georgia's claim that requiring immediate transfers in such cases would "fundamentally alter" state funded programs.
* The US 11th Circuit Court of Appeals  affirmed the federal district court's judgment, but ordered the district court to reassess  the State's claim that community-based care would be "unreasonable" given the demands of the state's health services budget. The 11th Circuit Court of Appeals looked at a US regulation adopted by the US Department of Justice to enforce Title II of the Americans With Disabilities Act that states "...A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. 28 C.F.R.§ 35.130(d)."   The US Department of Justice has interpreted this regulation as requiring the community placement of people in institutional settings when the state's own treating professionals have recommended such placement.
* In April 1999, the state of Georgia asked the US Supreme Court to decide "[w]hether the public services portion of the federal Americans with Disabilities Act compels the state to provide treatment and habilitation for mentally disabled persons in a community placement, when appropriate treatment and habilitation can also be provided to them in a State mental institution."
* The US Supreme Court, in a landmark decision made on June 22, 1999, concluded that, under Title II of the Americans With Disabilities Act, States are required to place persons with disabilities in community settings rather than in institutions when the State's treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with disabilities.
* The US Supreme Court held that "...unjustified institutional isolation of persons with disabilities is a form of discrimination" under the Americans With Disabilities Act and that "...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" and that "confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, and cultural enrichment." The US Supreme Court further held that "by definition, where, as here, the State confines an individual with a disability in an institutional setting when a community placement is appropriate, the State has violated the core principle underlying the ADA's [Americans With Disabilities Act] integration mandate."
* The US Supreme Court gave the states general guidance on how they might demonstrate compliance with the Americans With Disabilities Act if it had  "a comprehensive, effectively working plan for placing qualified persons with disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State's desire to keep its institutions fully populated."
* Some advocates of people who reside in developmental centers and other state owned facilities, said that the Olmstead Decision offered important flexibility for the states, pointing to a concurring opinion by Justice Anthony Kennedy who held that "...It would be unreasonable, it would be a tragic event, then, were the Americans with Disabilities Act of 1990 (ADA) to be interpreted so that States had some incentive, for fear of litigation, to drive those in need of medical care and treatment out of appropriate care and into settings with too little assistance and supervision...It is careful, and quite correct, to say that it is not “the ADA’s mission to drive States to move institutionalized patients into an inappropriate setting, such as a homeless shelter . . . .”
* Other Americans With Disabilities Act (ADA) Cases that went to the US Supreme Court:
1999 - Sutton, Murphy and Kirkinburg Decisions
2001 - University of Alabama v. Garrett
2002 - Chevron v. Echazaba
2003 - Medical Board of California v. Hason [Medical Board in March 2003 asked US Supreme Court to dismiss case just before the scheduled date for the case to be heard]]
2004 - Tennessee v. Lane and Jones
 
CDCAN'S INCOMPLETE HISTORY OF STEPS RELATED TO STATE'S OLMSTEAD DECISION IMPLEMENTATION
Listed below is an incomplete history (for now) of California's efforts to implement the Olmstead Decision.  CDCAN will complete this history over the next week, including updates up to 2007.  Significant proposals by the Governor, including major increases in federal funding for long term care, health and human services related programs were praised by advocates - though balanced by what some say is a pace that is far too slow for providing real options and choices for  tens of thousands of seniors and people with disabilities in nursing homes and other similar health facilities. 

January 2000
*  The US Department of Health and Human Services under President Clinton, issued a letter to the states advising that "...no one should have to live in an institution or a nursing home if they can live in the community with the right support.  Our goal is to integrate people with disabilities into the social mainstream, promote equality of opportunity and maximize individual choice" and recommended that states develop comprehensive working plans, as described in the Olmstead opinion.
February 2001
* President George W. Bush announced the New Freedom Initiative, stating that "...though progress has been made in the last decade, too many Americans with disabilities remain trapped in bureaucracies of dependence, denied the tools they need to fully access their communities." The intent of the New Freedom Initiative includes promoting increased access into daily community life including through "swift implementation of the Olmstead decision."
Spring 2002
* Assemblywoman Dion Aroner (Democrat - 14th District,-Berkeley) held an informational hearing on status of California's compliance with the Olmstead Decision, with many persons registering concerns or complaints about the delay in a state Olmstead Plan - three years after the original Supreme Court ruling.
September 2002
Governor Gray Davis signed into law AB 442 (Ch. 1161, Statutes of 2002 - one of the 2002 budget trailer bills), which directed the California Health and Human Services Agency to develop and submit to the Legislature by April 1, 2003, a  comprehensive plan identifying the actions the state could take to improve its long-term care system and develop an array of community-based programs and services that would enable people with disabilities to avoid unnecessary institutionalization and receive the services they need in the most integrated setting appropriate, using the guidelines established by the federal Centers for Medicare and Medicaid Services for development of a state "Olmstead Plan."
Fall 2002
* California Health and Human Services Agency held series of forums and meetings in various parts of the state for public input to develop a draft Olmstead State Plan.
* Governor Davis calls for special session to enact several proposed budget reductions immediately, including elimination of critical Medi-Cal optional benefits - with advocates beginning protests that carry into January. 
January 2003
* Governor Davis calls for closure of Agnews Developmental Center and includes first steps in proposed State Budget -  the last closure of a developmental center or state hospital occurred in 1996. 
* Governor proposes State Budget with massive reductions to SSI/SSP, Medi-Cal, regional centers, and other critical services and supports, including co-payments, narrow eligibility for regional center services and other "cost containment" measures.  Proposals spark massive protests. 
May 2003
*  The California Health and Human Services Agency, under then Governor Gray Davis, released the California Olmstead State Plan that said  "...the state commits to providing services to people with disabilities in the most integrated setting. The state commits to adopting and adhering to policies and practices that will provide a full array of services and programs that make it possible for persons with disabilities to remain in their communities and avoid unnecessary institutionalization.  This commitment involves making changes in current state policies and will require changes in federal policies that are biased towards institutionalization."
* The plan lays out strategies to implement the Olmstead Decision, including data collection, providing comprehensive service coordination, and reviewing community service capacity.
* A Olmstead Advisory Council was set up within the California Health and Human Services Agency - though there was no law requiring it to do so, nor any law or regulations establishing its responsibilities. 
* The Council however never met in part because funding for the office of the Health and Human Services Agency was substantially reduced in the budget passed by the Legislature in August 2003 and approved by then Governor Davis - just months before the historic recall election that ousted him from office in October 2003. 
November 2003
* Gov.Schwarzenegger assumes office - and stuns disability and senior advocates with massive proposed cuts and reductions to health and human service programs - including suspension of the historic Lanterman Developmental Disabilities Services Act, elimination of a critical component of the In-Home Supportive Services program and a proposed rollback of wages.  Protests mount at the Capitol - and the Governor rescinds many of his proposals,including the Lanterman Act., including 4,500 people who protest at Capitol December 10. 
January 2004
* Governor proposed State Budget, with many senior and disability advocates raising concern and opposing to proposed reductions and cuts with a state budget deficit growing to well over $17 billion. 
June 2004
* Governor announces that federal government will provide major matching Medicaid funding for a critical part of the  In-Home Supportive Services program (called "Residual Program") that previously he slated for elimination and that was previously state funded only.
August 2004
*  California Legislature passed SB 1365 by Sen. Wes Chesbro (Democrat, 2nd District, Arcata) that called for the creation of an Olmstead Advisory Council and made other requirements. The bill was widely supported by disability and senior organizations and advocates across the state.
* One strong supporter of the bill - who hoped to be named to the advisory council was L. Nastasha Littletree, a woman with developmental and other disabilities, a mother , advocate and chair of the Area 4 Board on Developmental Disabilities in the Sonoma County area (pictured below). 
September 2004

* Gov. Arnold Schwarzenegger vetoed SB 1365, disappointing many advocates across the state, but signed an executive order, S-18-04, that  directed the California Health and Human Services Agency to establish the Olmstead Advisory Committee to inform the Administration's understanding of the current system of care and provide leadership in developing future initiatives to comply with Olmstead.
* Some advocates at the time believed that the veto of SB 1365 indicated that the Schwarzenegger Administration would not seriously move to comply with Olmstead Decision. 
* Assemblymember Lynn Daucher (Republican - Brea) held an informational hearing on Olmstead early in September 2004, with Natasha Littletree providing testimony (Note from Marty Omoto: we had dinner after the hearing and that turned out to be her last public appearance and testimony - she died a few weeks later, despondent about the progress of implementation and the veto of SB 1365,but still hopeful that things would get better.)  Many other advocates, including Ruth Shelton of Sacramento spoke. 
November 2004
* Advocates urge  (unsuccessfully)  Assembly Speaker Fabian Nunez (Democrat -Los Angeles) to authorize the continuation of the special Assembly committee on Olmstead implementation through the 2005-06 session.  That select committee officially went out of existence as of November 30, 2004.
* Voters approve 54-46% Proposition 63, Proposition 63 the Mental Health Services Act that will expand funding for new community-based services through an increase on income tax for persons with incomes above $1 million
December 2004
* Assemblymember Lynn Daucher (R-Brea) looking to introduce Olmstead related legislation relating to diversion and transition for elderly and people with physical disabilities. Concern regarding how the State will comply with Olmstead if the Governor proposes major cuts to community-based services and supports critical to people with disabilities and seniors in his proposed budget for 2005-2006 that he will submit to the State Legislature on January 10, 2005.
January 2005
* Olmstead Advisory Committee members appointed and announced by Secretary Belshe.
* State Budget proposed by Governor raises concerns and opposition from disability and senior advocates on cuts and reductions to health and human services. Huge state budget shortfall in the billions of dollars.
March 2005
* First Olmstead Advisory Committee meeting held at the Secretary of State Office Building in a packed room. on March 11, 2005, including participation for the entire meeting by Secretary Belshe - who attends and stays for nearly all the subsequent Olmstead Advisory meetings
May 2005
* Update to Olmstead State Plan compiled by State including reports and updates on several initiatives, new programs, major proposals for Medicaid or other federal funding, including housing. 

AGENDA FOR OLMSTEAD MEETING APRIL 27
1.    Welcome and Introductory Remarks   
2.    Update - Secretary Kim Belshe, California Health and Human Services Agency
3.   Policy Development
•    Draft 2007 Workplan for the Olmstead Advisory Committee
•    Home and Community-Based Services Cost Effectiveness:  Building Community Capacity
•    Health Care Reform and Potential for Long Term Care "Rebalancing"
•    Nursing Facility A/H (Acute Hospital) Waiver Reform
4.    Implementation and Oversight
•    Real Choices:  California Community Choices
•    Money Follows the Person: California Community Transitions
•    Adult Day Health Care Program: Implementation of SB 1755
•    Mental Health Services Act:  Monitor Implementation
•    Closure of Agnews Developmental Center
•    Housing/Emergency Shelter (Proposition 1C):  Opportunities
•    Transportation:  Mobility Action Plan Implementation Project
•    Discussion about formally identifying an OAC member for each of the above issue areas.  The members will act as liaisons and report back to the Olmstead Advisory Committee  at each meeting.
5.    Olmstead Education and Outreach Initiative
•    Legislative Briefing Debrief
•    Next Steps
6.    Presentations
•    California Health Care Foundation Long Term Care Reform Study (Bonnie Darwin and Kate O’Malley)
•    California Coalition for Caregivers (Vicki Farrell)
7.    Legislation Discussion                   
8.    Next Meeting and Agenda
9.    Public Comment  (incuding people calling in)

OLMSTEAD ADVISORY COMMITTEE MEMBERS
California Health and Human Services Agency Secretary Kim Belshé appointed Advisory Committee Members who represent consumers, family members, providers and advocates. Members of the committee serve on a volunteer basis without compensation. Brenda Premo, director of the Center for Disability Issues and the Health Professions at Western University of Health Sciences and a former director of the California Department of Rehabilitation, serves as chair of the committee.
CHAIR
• Brenda Premo, Center for Disability Issues and the Health Professions
ORIGINAL MEMBER LIST (MARCH 2005)
• Linda Anderson, Contra Costa County Employment and Human Services Department
• Peter Anderson, Assembly Republican Office of Policy
• Tony Anderson, The Arc of California
• Elaine Batchlor, LA Care Health Plan
• Richard Chambers, CalOptima
• W. D. Chrisner, III, The Dayle Mcintosh Center
• Judith Jensvold Citko, California Hospital Association
• Peggy Collins, Principal Consultant, Senate Select Committee on Developmental Disabilities and Mental Health
• Deborah Doctor, Protection and Advocacy, Inc.
• Nancy Hall, Community Resources for Independence
• Barbara Hanna, California Association for Health Services At Home
• Michele James, Placer County IHSS Public Authority Advisory Board
• Mary Jann, California Association of Health Facilities
• Eileen Kunz, On-Lok Senior Health Services
• Jorge J. Lambrinos, California Commission on Aging
• Joan B. Lee, Gray Panthers of California
• Gwen Lewis-Reid, Los Angeles County Department of Mental Health
• Bryon MacDonald, World Institute on Disability
• Sunny Maden, Family Member and Advocate
• Jackie W. McGrath, Alzheimer’s Association, California Council
• Lydia Missaelides, California Association of Adult Day Services
• Marty Omoto, California Disability Community Action Network
• Donald Roberts, Department of Developmental Services Consumer Advisory Committee
• Elizabeth Rottger, Marin County Division of Aging
• Anthony Sauer, Nevada-Sierra Regional IHSS Public Authority
• Timothy Schwab, SCAN Health Plan
• Cynthia Traxler, Family Member
• Linda L. Watts, Older and Disabled Adult Services, Solano County Health and Social Services
• Kate Wilber, Center for Long Term Care Integration
• Kathie Zatkin, Alameda County Network of Mental Health Clients
 
    
Contributions URGENTLY Needed To Continue
The California Disability Community Action Network is a non-partisan link to tens of thousands of Californians in every community, including people of color, people of every type of disability, including people with physical disabilities, people with developmental and other disabilities, people with traumatic brain and other injures, people with mental health needs, seniors, people with MS, Alzheimer's and others, and all of their families, community organizations and providers, direct care and other workers, and other advocates. These action alerts and news reports, townhall telemeetings and other projects is for all of them.

To continue the CDCAN website, the CDCAN News Reports.  sent out and read by over 45,000 people and organizations, policy makers and media across California and to continue the CDCAN "Advocacy WIthout Borders Townhall Telemeetings" which since December 2003 have connected thousands of people with disabilities, seniors, mental health needs, people with MS and other disorders, people with traumatic brain and other injuries to public policy makers, legislators, and issues. Please send your contribution/donation (make payable to "CDCAN" or "California Disability Community Action Network):

CDCAN 
1225 8th Street Suite 480
Sacramento, CA 95814
or go to the CDCAN website at  and click on "DONATE TO CDCAN" to contribute using credit card via Paypal.
 

The CDCAN Townhall Telemeetings are partially funded by a small grant from the USC UCEDD, Grant #90DD0540 from the Administration on Developmental Disabilities. (note: the opinions expressed or content in these reports do not necessarily reflect the views or opinions of the USC UCEDD. 

MANY THANKS to Manteca CAPS, Training Toward Self Reliance, UCP, California NAELA, Californians for Disability Rights, Inc (CDR) including CDR chapters, CHANCE Inc, Parents Helping Parents, Arriba, Strategies To Empower People, Parents Helping Parents, Asian American parents groups, Resources for Independent Living and many other Independent Living Centers, several regional centers, People First chapters, IHSS workers, other self advocacy and family support groups, developmental center families, and hundreds of individuals.