Advocate surge squelches Olmstead threat

10/22/2012
Opinion/Editorial
David Lord
Director of Public Policy


Olmstead and MR v. Dreyfus: The Governor relents

The news was announced on Monday, October 22, and we can all breathe a sigh of relief. Governor Gregoire won’t appeal MR v. Dreyfus.  

Disability and senior advocates across the nation and in Washington State stopped a serious threat to a fundamental right of people with disabilities.

The Governor’s decision not to appeal eliminates the dreadful prospect that the current Supreme Court might overrule their earlier decision in Olmstead v. LC (1999).

What was at stake? In Olmstead, the Court decided that the “integration mandate” of the Americans with Disabilities Act requires that people must have community services as an alternative to living in an institution. In the 13 years since Olmstead was decided, the case has repeatedly been used as the basis for decisions supporting increased community services, all over the nation. The decision in MR v. Dreyfus  is just one of the latest in a long line of cases relying the Olmstead precedent. Because of MR’s reliance on Olmstead, if the Supreme Court decided to accept the Governor’s appeal the Court would be taking another look at whether or not the “integration mandate” of the ADA would remain enforceable. Given the recent decisions of the court favoring “states rights” over federal mandates, many experts believed that the current Court might well change its mind about the integration mandate. If the Court overruled Olmstead, the most important legal authority supporting community alternatives to institutional care would vanish, and with it much of the momentum that has fueled the national and state policy change from facility-based care to services in the home.  

Over the past few months, the Governor has made it very clear that she intended to appeal the MR case, despite the risk to Olmstead, so her decision to change her mind was a big victory for disability advocates. But what was the threat, exactly? What was done to try to change the Governor’s mind? And what is the state of this case, now?


The threat to Olmstead

It is clear that this appeal would have put the integration mandate of the Americans with Disabilities Act – the right of people with disabilities to services in the most integrated setting appropriate to meet their needs – squarely in harm’s way. The Supreme Court had affirmed that right in 1999 in the case of Olmstead v. LC., but since then judges who supported the original decision have left, and new judges have replaced them. This is a very different Court.   

Olmstead v. LC  concerned two women with developmental disabilities and mental illness who wished to live in the community, rather than an institution. No community supports were available to them, and a lawsuit was filed. The Supreme Court’s decision included several separate opinions, but the majority decided that the women had the right to receive care in the most integrated setting appropriate to meet their needs, under Title II of the Americans with Disabilities Act (ADA). Unnecessary institutionalization amounts to discrimination under the ADA. This is a landmark case in the disability civil rights movement. As mentioned above, it has been the basis for many other cases upholding this right.

The MR v. Dreyfus case is a challenge to the Governor’s implementation of severe cuts to personal care services stemming from the budget and revenue crisis. The plaintiffs in MR  are the Arc of Washington, SEIU 775, Puget Sound Alliance for Retired Americans, and 12 named individuals who are affected by the service hour reductions. Representing plaintiffs were Stephen P. Berzon, Eve Hedy Cervantez, Stacey Leyton, Matthew John Murray, Casey Austin Roberts of the Alshuler Berzon law firm, and Andrea Brenneke of MacDonald Hoague & Bayless. The plaintiffs say that the cuts are so deep that  they threaten the ability of some people with disabilities to remain in their homes. Without adequate personal care hours, some individuals are likely to have to move to a nursing home or other facility. A facility is not the “most integrated setting” that can support their needs, so cutting services so severely that community living can’t be sustained violates the integration mandate as interpreted through Olmstead.

Personal care services are absolutely indispensible for many people with disabilities who wish to remain in their community home. Assistance includes all sorts of tasks of daily living – bathing, getting ready to go to work, shopping – the tasks vary depending upon the person, and the impact of cuts depends on the person. Personal care can be the difference between living an active life in the community and inadequate support and isolation, or even institutionalization. The MR plaintiffs did not assert that the state could not cut these services at all – just that in making the cuts, the state had to take steps to make sure that people didn’t risk institutionalization as a result. The plaintiffs say that the state must allow people the right to make a case for more hours, and must consider the risk of institutionalization for those who receive service cuts and make adjustments to ensure against this.

The plaintiffs in MR v. Dreyfus asked for an injunction to stop the state from implementing the cuts. This request worked its way up the court system all the way to the 9th Circuit Court of Appeals – the last stop before the US Supreme Court. The State lost there, but the result was closely divided.

The Governor’s position has been that as a result of the decision of the 9th Circuit, no state would be able to make cuts in their personal care service program once it was initiated. She also maintained that other states would be less likely to expand their personal care programs, because they will fear that they cannot later cut them back in the face of future budget problems. The 9th Circuit decision requires the state to take additional steps to protect against the risk of institutionalization – as was requested by the plaintiffs.

Changing the Governor’s mind

The likelihood that the Governor would appeal MR v. Dreyfus became apparent to disability and senior advocates in August. National and state organizations and individuals worked together to try to change the Governor’s mind. Dozens of letters were sent to the Governor from national and state organizations such as the National Disability Rights Network, ADAPT,  Access Living Chicago, People First, Self-Advocates in Leadership, Mental Health Action, My Medicaid Matters, Bazelon Center for Mental Health Law, Center for Public Representation, National Health Law Program, National Senior Citizen Law Center, AARP, Association of Centers for Independent Living - WA (ACIL-WA), Center for Independence (CFI), Central Washington Disability Resources, Coalition of Responsible Disabled (CORD), Alliance of People with disAbilities, Tacoma Area Coalition of Individuals with Disabilities (TACID) National Council on Independent Living, NAMI, Washington State Elder Law Attorneys. There were many others – and many organizations signed on to joint letters, while individuals sent their own messages.  Self-advocates across the country held press conferences, asking Governor Gregoire to find an alternative to the appeal.  Advocates from across the country used Facebook and other social media outlets to get the word out. In Washington state, several newspapers and radio stations carried stories. There were rallies in Olympia and across the country. Repeatedly, organizations attempted to get a meeting with the Governor to discuss the danger posed by appealing the case, and why it was so important to seniors and persons with disabilities that the Olmstead decision remain in place. Despite assistance from legislators, no meeting could be arranged.

Even with all of this activity, the Governor gave no indication that she was wavering. A conference call was held in Sept., hosted by her staff, but this provided little insight into her intentions. The initial deadline for filing an appeal was Sept. 15, but the Governor requested an extension (it was granted till Oct. 22) so she would have more time to make her decision. This was interpreted by some as an indication that all of the pressure of disability advocates was having an effect.

Last Friday, the Governor’s staff sent out invitations to a conference call to be held at 4:00 on Monday, Oct. 22 – literally the “eleventh hour” before her decision was due. Friday’s invitation stated that she hadn’t yet made up her mind.


Where the case stands

The Governor’s staff announced her decision on the conference call  to the cheers and exclamations of the callers. Her staff also provided a brief explanation of what had happened to bring the settlement, and released a press statement and the letters between the Governor and the DOJ.

The solution for the Governor was to get some assurance from the Department of Justice regarding what she needed to do in order to meet the requirements of Olmstead when she implemented the cuts.   Last week, as the Oct. 22 deadline loomed, the Governor asked the US Department of Justice (DOJ) for help in reaching a settlement. The DOJ responded with a letter that says that the DOJ believes that the State will be in compliance with Olmstead provided that certain protections are put in place for people affected by the Governor’s cuts to personal care. These are presumably protections that the Governor is willing to agree to.

The case isn’t over just yet, however. Instead, it goes back to the Superior Court for a trial of the issues. That court will decide whether or not the protections provided for the people whose services were cut are sufficient. The parties might come together with a settlement, or the whole matter might go back up for an appeal.

While for the time being the Olmstead case remains intact, this likely won’t be the last challenge to the integration mandate and Olmstead. That said, the real story here is positive and encouraging. We have shown that we are ready to face the next challenge. Disability advocates across the nation recognized this threat to their rights, organized, spoke up, persisted, and were finally heard,  and won. 

 

Related Links regarding M.R. v Dreyfus

Governor Gregoire's press statement, Oct. 22, 2012

Secretary Arnold-Williams press statement, Oct. 22, 2012

Assistant Attorney General Perez letter to Gregoire, Oct. 22, 2012

Gregoire's letter to Secretary Sebelius and US Attorney General Holder, Oct. 18, 2012

Senator Keiser letter to Gov. Gregoire, August 30, 2012

AARP letter to Gov. Gregoire, Sept. 6, 2012

National Disability Rights Network letter to Gov. Gregoire, Sept. 5, 2012

Stakeholder agencies' letter to Gov. Gregoire August 6, 2012

 

Issues: 
Community living