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On March 31, 2016, six people with intellectual and developmental disabilities and their family members joined the Ability Center of Greater Toledo to file a class action lawsuit against the Governor and other state officials. The suit was filed in the United States District Court for the Southern District of Ohio. The suit was initiated on behalf of a class of individuals with developmental disabilities who are in institutions or are at risk of institutionalization in an Intermediate Care Facility (ICF) with 8 or more beds. The suit asserts that the state is in violation of the Americans with Disabilities Act as interpreted by the United States Supreme Court in the landmark case of Olmstead v. L.C.
What is happening to people with disabilities is against the law
The Americans with Disabilities Act (ADA) was passed in 1990 because Congress found that society tends to isolate and segregate people with disabilities. The ADA says that people with disabilities should have the same opportunities as everyone else to participate in all aspects of society. In 1999, the United States Supreme Court decided the landmark case of Olmstead v. L.C. This case ruled that keeping people with disabilities isolated in institutions away from society when it is not needed is a form of discrimination and against the law.
Ohio is in violation of the law. There are about 5,800 people with disabilities who live in large institutional settings. Approximately 2,500 people who live in ICFs have requested and are waiting for waivers that will allow them to move out of the ICF and receive services in the community instead. The wait time is about 13 years to get a waiver. There are also 22,000 individuals who currently live in the community but are at serious risk of having to move into an institution because they do not have access to the type or amount of services that they need to continue to live safely in a community setting.
Funding is provided for anyone who resides in an ICF. However, funding for community-based options is limited. There are also restrictions on what services you can get and how much of those services can be provided. If a person is not able to access a waiver, or the waiver does not provide enough appropriate services, they are left with only one option — placement in a restrictive ICF, even if they would prefer to receive services in the community.
When an individual lives in an institutional setting, they do not have the same opportunity to access community life as individuals who receive services in a community setting. This includes access to integrated employment programs and supports that provide opportunities for people to work in the community alongside people who do not have disabilities. People who live in ICFs do not have the same access to employment services and are often only provided with employment opportunities in segregated sheltered workshops or day programs.
No one should be forced to live in the community. However, people should not be needlessly segregated in institutions when they do not want to be there simply because they cannot access the services and supports that they need to live safely in the community.
People with disabilities cannot wait any longer
Ohioans with intellectual and developmental disabilities cannot and should not wait any longer to live as full members of the community. The ADA was passed nearly 26 years ago, and the Olmstead decision was issued nearly 17 years ago. Ohio has known about its obligation to provide services to people with intellectual and developmental disabilities in the most integrated setting appropriate to their needs. The state was required to create a comprehensive and effectively working Olmstead plan, but has failed to do so. Many individuals with intellectual and developmental disabilities have to be on a waitlist for over 13 years before they can access their right to community-based services.
The state ignored opportunities to resolve the problem
In July of 2014 Disability Rights Ohio and its partners alerted Ohio leaders to clear violations of the ADA within Ohio’s intellectual and developmental disabilities service system. Disability Rights Ohio and partners tried several times to work with the state to avoid legal action and reach an agreement that would resolve legal claims. No agreement was reached. As a result, there was no alternative but to proceed with litigation.
The state’s recent initiatives are not enough
The most recent state budget invested an additional $116.5 million in state funds for the Developmental Disabilities system. This additional investment of state dollars allows Ohio to also receive $151.5 million in federal dollars — for a total of over $286 million. The budget investments are a step in the right direction, but they do not create a service system that complies with federal law. There are several reasons why this is not enough to protect the rights of people with intellectual and developmental disabilities in institutions or at risk of institutionalization:
- These dollars are being used to add a limited number of home and community-based Medicaid-funded waivers, but there are still not enough waivers to meet the existing demand for home and community-based services.
- The additional dollars are a one-time investment with no guarantee or plan for the future investments and policy changes that are needed to make integrated community-based services available to everyone who needs them.
- While the state is funding additional waivers, the waivers must be administered at the county level. The state is not providing additional funding to cover the administrative costs — and many counties simply cannot afford the additional expenses. Therefore, enrollment in the new waivers that were set aside for individuals who want to move out of institutions is moving very slowly. As of April 2016, of the over 2,500 individuals who want to move out of institutions, only three have been able to enroll in these new waiver programs.
- There is not enough accurate information being provided to individuals and families to make informed decisions about alternatives to institutionalization.
- There are not adequate safeguards to ensure the health and welfare of people who choose to transition from institutional settings to the community, including a discharge process that is followed by identification of gaps in care to reduce risks of re-admission, crisis or other negative outcomes.
- There are no plans for the state to make sure that services that are needed by individuals with intellectual and developmental disabilities are available in the community from qualified service providers.
- There are no policy proposals capable of addressing segregation in work and day programs experienced by people with intellectual and developmental disabilities. After three years of implementation, Ohio’s Employment First Policy has yet to effectively reach people with intellectual and developmental disabilities living in institutions. Also, people in sheltered employment have historically had a hard time getting employment services from Ohio’s vocational rehabilitation agency, Opportunities for Ohioans with Disabilities (OOD). Integrated employment and day options are only available to people with access to existing home and community-based waivers.
You can contact Disability Rights Ohio at 1-800-282-9181 (TTY 800-858-3542). Press 2 for our intake line. We will do our best to answer your questions.