Memorandum Opinion: SEPTA Vs. American Freedom Defense Initiative
The New Freedom Initiative
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Transcript of The New Freedom Initiative
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The New Freedom Initiative
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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
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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
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Federal Aid for Infrastructure changes
• Examples of grants and programs for infrastructure change:– Real Choice
Systems Change– Demonstration
Grants– Interview with
Equip
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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…
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Professor Ed Kraus
• Why is it important?– Three
Major Points
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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.
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“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.
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“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.
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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?
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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.
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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
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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.
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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.”
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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.
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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.
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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.”
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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.
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Interview
• “Conditional Right”– “Wiggle room” is disturbing
• Good language:– “Discrimination to unnecessarily
institutionalize…”• Cautious approach because of history
of discrimination
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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
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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
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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
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Perspectives on Olmstead
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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
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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
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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
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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
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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
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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
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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
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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
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Critiques of Olmstead
• Too slow• Too fast• Risks of rise in
homelessness• The available defenses
– Qualified right
• Poor, rushed plans
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Interpretations of Olmstead-Cases
• Frederick L. v. Department of Public Welfare (3d Cir. 2005)
• Arc of Washington and Sanchez (both 9th Cir. 2005)
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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
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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
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Benefits of the Prospective Approach
• Gradual progress• Provides states with
flexibility– For there specific needs– In bad economies
• Does not overreach
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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.”
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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
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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
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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?