This is being provided in a rough-draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings
LINDSEY WEINSTOCK: While we wait to get started, we could introduce ourselves. It's after 1:50. Thank you for coming to our presentation. I'm Lindsey Weinstock, I'm a trial attorney in the Disability Rights Section of the Civil Rights Division of the Department of Justice, and I am a woman in my 30s, white woman with longish brown hair and gray glasses, and I use she/her pronouns.
And I'll pass it on to Patrick.
PATRICK HOLKINS: Hi, everyone, my name is Patrick Holkins, I'm a trial attorney in the special litigation session of the Civil Rights Division of the DoJ. I work on Olmstead enforcement cases like Lindsey. I'm very happy to be with you today.
LINDSEY WEINSTOCK: We're waiting for our slides, which mostly just is a guide for us, not really a word-for-word what we're going to say, but we'll wait a little longer, but if anybody wants to share what brought them to this presentation, maybe that will be able to help us focus a little bit on what you want to hear. Come on in.
This is the DoJ Integration Mandate year in review. You're in the right place. We were just weigh we're waiting for our PowerPoint to get up. I'm from the Disability Rights Section, Patrick from the special litigation section. We were just inviting folks to share if they wanted to why they're here in the presentation so we could better say what you want to hear. Anybody who wants to.
Attendee: My name is Joy. I'm in disability law. I'm currently looking into a clerkship at a local county courthouse. I'm studying disability law as part of my career.
PATRICK HOLKINS: Nice to have you here.
Attendee: I'm Becka with the American University Washington College of Law's disability rights clinic. I have done some reading on Olmstead with disability rights, some pretrial litigation stuff and looking for more of seeing it out in the wild.
Attendee: I'm Sharon, at Hyde and the OGC for housing compliance office. And I work on ADA compliance and we see more Olmstead waivers when there's been an Olmstead case the DoJ brought and then public housing or something like that. Olmstead might impact my work and others'.
LINDSEY WEINSTOCK: All right. Thanks.
Attendee: I need to restart the whole Zoom session and reinstall the client to fix your issue or we can move forward without your slides.
LINDSEY WEINSTOCK: As long as I can see it that way, I'll know what to say. If you're curious about anything that we've said, feel free to come up and ask afterwards. So would anybody else like to share topics they're in hearing about or cases they're interested in hearing about? If not, that's fine.
Attendee: I was going to say I'm a DoJ civil rights attorney doing education work, but happy to defer back to you guys for your presentation.
LINDSEY WEINSTOCK: If anybody has questions about the education case that we're going to go over. Thank you again for coming and we're going to talk about our work in immigration mandates, specifically in enforcement of DoJ. For folks who have less of a background in the Integration Mandate a little bit, I'm going to go over the legal background just at a high level.
I'm going to go over some important enforcement principles that DoJ tends to follow when going through its enforcement processes, and then we'll go into the meat of the matter. We'll give some recent updates the past calendar year for DoJ in our enforcement efforts, specifically in findings and development of investigations.
Then we'll move into negotiations and any settlements or consent decrees last year, litigation developments of the last year, statements of interest that we filed, I'll explain what those are also. But we filed those in federal courts throughout the country. And we filed a few this year of interest. And then updates on compliance moderating where we have existing compliance decrees or settlement agreements. We'll have updates about that.
And finally, we'll have an update on recently issued guidance relevant to mandates and after that we'll have time for questions if we manage our time well which I can't guarantee.
And we look forward to having discussions based on what we have to say. So the Integration Mandate when I say the Integration Mandate, what I really mean the collaboration between Title II of the American with disabilities act, the implementing regulation of the ADA and Supreme Court decision in Olmstead issued in 1999. As most of you may know, the statute itself prohibits discrimination by state and local governments in the provision of services, programs and activities, and the implementing regulation adds color to that litigation.
What does it mean not to discriminate based on disability?
And Congress was clear in the findings for the statute itself that segregation, unnecessary segregation was one form of discrimination on the basis of disability and the implementing regulation takes that one step further in the same way that the Rehabilitation Act regulations did and said that states and local governments are affirmatively required to administer services, programs and activities in the most integrated setting appropriate to the needs of all individuals with disabilities. The preamble to the regulation clarified that interaction to the greatest extent possible of people without disabilities is how do you measure so to speak integration? That that's obviously pretty qualitative standard, and really just measures the amount of integration into the community that one can have.
And then Olmstead, the Supreme Court decision from 1999 explicitly held that unjustified segregation is a form of discrimination under the ADA and it clarified that one of the bases of that opinion, 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.
So the court added important perspective and reasoning behind why not only because Congress said so, but in principle, unjustified segregation is a form of discrimination under the ADA. And the court held importantly that community integration must be provided when community-based services are appropriate, when they're not opposed and when the state or local government can reasonably accommodate community services in the light of the entity's resources and in light of its obligation to serve other population of people in the state. With disabilities. What does DoJ do to enforce this requirement, the Integration Mandate? The affirmative requirement that public entities serve people with disabilities in a setting appropriate to their needs?
We conduct investigations, we receive complaints and we evaluate complaints from the public and advocacy organizations. People with disabilities, really anybody who might be aware of discrimination that might be happening, including unjustified segregation. We evaluate those complaints. We determine whether to conduct investigations, and our regulations actually provide a process for investigations, broadly speaking. They set forth the authority to conduct the investigation. They require that we seek voluntary compliance before filing a lawsuit. If we can't, the DoJ may file a lawsuit.
And if they can't, we can file an enforcement suit and that's essentially what we do and if we get either voluntary compliance or court-ordered relief, we then monitor implementation of that relief to ensure compliance. So what are the principles that underlie our enforcement work? Well, we're not just looking to get people out of institutions. Obviously, that's a big part of the history of this requirement, the Integration Mandate.
Of course people who don't want to be served in institutions, who haven't been given the opportunity to live in community settings, need to get out of institutions. I mean, that's obviously, the priority, but that can't be done responsibly without ensuring that there's a base of community-based services to meet people's needs in the community as opposed to in institutions. That's a huge tenet of our work is to not only get people out but make sure that they're supported in the community. And usually, that's a big reason why people are in institutions nowadays in the first place.
Integration in all aspects of life. The Integration Mandate is not only about where you live. Historically, that was the impetus but people receive state services and programs in all areas of their life: Education, employment two important examples. States are required to provide services in the most integrated setting, no matter what type of services those are.
And the third tenet that I have here is stakeholder engagement. A huge part of our work and why we encourage everybody to really communicate with us and tell us what you see on the ground as a problem as advocates, as people with disabilities, as people who know people with disabilities, you know, tell us what you see as discrimination that's happening, and we will use our process to evaluate that and use limited resources to direct our enforcement activities accordingly.
Stakeholder engagement, hugely important to us to understand what the problems are, as well as how best relief might be geared towards addressing that. So now, I'll turn to Patrick for starting our DoJ updates on the investigation front.
PATRICK HOLKINS: First, I'm going to touch on some developments relating to our investigations. I think Lindsey gave a great overview of what the authority is for those investigations as a practical matter. They tend to last anywhere between a year and two years. It could be shorter, it could be longer. It depends on the complexity of the matter. And at the end of an investigation, if the department finds reasonable cause to believe that a violation of the ADA has occurred, we issue what's called a findings report.
And we did this in one of our matters, in the special litigation section, last July, in South Carolina concerning the unnecessary segregation of adults with serious mental illness in adult care homes. In South Carolina, they were called community residential care facilities or CRCFs. We found that the state is over-relying on these adult care home placements and does not make needed community-based alternatives available and accessible to people with serious mental illness, making these adult care homes the default option. And what we also concluded and this is typical of our findings reports is we outlined reasonable modifications.
Basically, the steps that the jurisdiction must take in order to address the violations that we found. We found that South Carolina can reasonably modify its existing community-based programs to ensure statewide access to adequate services, such as permanent supportive housing, community treatment, supportive employment, peer support, crisis services and diversion and transition services. That's a fairly comprehensive package of supports that are intended, and when delivered effectively, can help individuals with serious mental illness live, work, receive services in more integrated settings.
This matter is still in the negotiation phase, which is to say we are working towards voluntary compliance for the jurisdiction. I'm going to move on to talk about a settlement that we reached in Alameda County, California. This was the culmination, the conclusion of a years-long investigation and also years-long negotiation effort and it resulted in our intervening and filing a proposed settlement in a pre-existing private case, disability rights California, the Alameda County, that settlement result, both the private litigation and our investigatory findings, going back to our findings.
In 2021, we found a Title II violation based on the county's failure to provide adequate community-based services for people with mental health disabilities and overreliance on institutions, such as the psychiatric hospital. We also found that the county was perpetuating constitutionally unlawful conditions and practices at its Santa Rita Jail. This was an innovative case because we're exploring the intersection between overreliance on a classic institution, a psychiatric hospital, and kind of the downstream effects of that overreliance, specifically incarceration.
And the settlement agreement that we reached requires the county to provide timely mobile crisis response services and intensive mental health housing and employment services, as well as strengthen discharge planning and identify and proactively engage people who have serious mental illness. Again, a fairly comprehensive suite of community-based services that are intended, when delivered effectively, can support people with serious mental illness outside of a state hospital setting. We are participating in monitoring a private settlement related to the conditions at the Santa Rita Jail. So that's not covered under the settlement agreement that DoJ negotiated, but rather a private settlement that we're helping to monitor.
So those are the two investigation findings I wanted to share, but there are a number of other cases that are in a negotiation posture. This is typically where we have completed an investigation, issued a finding report, identified violations to Title II and we are working with the jurisdiction and in all cases the state to resolve those findings through voluntary compliance, through a settlement, whether that's out of court or through a court-enforceable consent decree. This includes three state where we have found violations of Title II related to a children's behavioral health system: Maine, Alaska, and Nevada. So it's really an exciting time in HHS to be doing kids-focused work and we really have evolved considerably through those findings reports and hopefully, through the settlements, as well.
We also have matters in a negotiation posture regarding adults with serious mental illness who we found are unnecessarily institutionalized in adult care about facilities. I think now I can turn it back to Lindsey to talk about litigation.
LINDSEY WEINSTOCK: So just as background, I think a lot of our current work regardless of the population that's at issue in any given case or regardless of the types of -- the size of the case or the size of the matter, we're talking about states where we found a violation based on a lack of community-based services leads to either or both unnecessary institutionalization or segregation or a serious risk of unnecessary segregation, usually in institutions, but sometimes, in classic institutions like intermediate care facilities and other times, institutions like adult care homes.
But the basically, the idea is it's a stop gap for the states' lack of capacity and community-based services, lack of ability to serve people in the community leads to people turning to institutional settings to receive those services. And in litigation, we had recently, I guess -- one of the biggest developments in DRS, the Disability Rights Section is our win at trial of United States versus Florida, which is a case that alleged the unnecessary segregation of children with complex medical needs in nursing homes in the state, and placing other children with the same types of disabilities and needs at serious risk of such unnecessary institutionalization. It's a long-standing case with a long history.
I'll describe it a little bit. The complaint was filed in July of 2013, and went to trial actually almost a year ago. So a ten-year litigation, not to mention the six-month investigation that preceded that. Plus, there was a private putative class action that had been instituted in 2012 which we didn't intervene with, but which we were consolidated with originally.
In 2016, we were on the eve of trial in that case, and our judge, we were in the Southern District of Florida, our judge dismissed the case without emotion by the defendant on the grounds that the attorney general doesn't have the authority to sue to enforce Title II of the Americans with Disabilities Act.
Obviously, that was a huge and unprecedented decision and we appealed not immediately for various procedural reasons, which if you're a lawyer like me, you might get excited talking about. So our appeal was delayed for a little bit. We finally were able to file that appeal in early 2018, and in September of 2019, the 11th Circuit reversed that decision thankfully. And remanded the case -- actually the case wasn't remanded immediately because the state of Florida petition the hearing en banc, the entire 11th circuit tried to get the court to hear it, to petition for certiorari at the Supreme Court.
To December of 2021, the 11th circuit denied that petition for rehearing en banc, and we were remanded to the district court, assigned a different judge and we were off to the races in about April of 2022 and finally, the Supreme Court denied cert in August of 2022. We had a judge in the Southern districting of Florida, Judge Middlebrooks and he operates a rocket docket. We were on track for trying this case in a year. We needed an entirely new record because the information was very old and we're seeking injunctive relief so you need a current level bud we had to do it in a year as opposed to the three years that we had used to litigate the case pre-appeal.
But we had a lot of disputes with the State of Florida, but we managed to bring the case to trial in May of 2023 and the court promptly issued a decision in July of 2023, holding the state liable for violating Title II of the ADA and issuing an injunction requiring increasing capacity specifically of private nursing that was the cornerstone of the case. The state was failing to provide authorized private duty nursing services in the community due to a number of factors, among them being low reimbursement rates, failure to set adequate standards for provider networks, the managed care state, a Medicaid system that operates through private companies that the state contracts with essentially to pay on a flat rate for members to provide all the services those members need.
Including required community-based services like private duty nursing which children with complex medical needs tend to need and they were failing to provide that service. And parents had to resort to institutionalization as a result and some, rather than resorting to institutionalization would forego needed services in the community and made heroic efforts in impossible circumstances to keep children with them in the community.
We had many parents testify at trial about their experiences and the judge clearly saw the pattern that we were trying to establish of lack of access, but the reason the parents either had to make a difficult choice to institutionalize their children, or were at serious risk of having to do that.
So the opinion was issued on a Friday evening in July and Monday morning, the state filed a notice of appeal. It was a very contentious case all ten years of this and continues to be. The appeal oral argument was heard in January of this year. And the state also moved to stay the injunction pending appeal. That same motion carried with the case and it was decided in February.
The court granted it in part and denied it in part. It stayed two much smaller parts of the injunction, but enforced the vast majority of it.
It maintained the monitor provision. The court has maintained authority to require increased access to private duty nursing, so all children authorized to receive private duty nursing must receive 90% of the authorized hours, and other provisions regarding discharge and transition planning for children living in nursing facilities, as well as provisions around improving care coordination for children both living in the community and in nursing facilities.
So all of those provisions are still in effect pending appeal. They'll be overseen by the court but the court monitor that the district court had appointed is paused for now until we get a decision. Stay tuned. Long-standing case but the judge was really intent on making sure that relief became available to families as soon as possible, if not immediately.
Just to give a sense, it was a 79-page opinion. Very thorough. The judge was clearly affected by the testimony that the families delivered to the court, both in video depositions and in-person testimony.
And just to give you a quote of the flavor of how the judge reacted to the testimony that he heard, he wrote children with medical complexities deserve equality and freedom from isolation, both as a matter of right and conscience. And I encourage you to read the opinion, because it does have stories, full stories, pages long of each of several, but not all of the children and families.
Attendee: Did you allege any denial of -- claims? (inaudible).
LINDSEY WEINSTOCK: I'll get to a case and Patrick will talk about -- not an ID, but is in the educational space. We were on alleging claims around failure to provide necessary medical services and other home community-based services that cause risk of segregation in nursing homes, residential facilities. The next case that I'm going to talk about is United States versus Colorado, a much more recently filed case alleging unnecessary segregation and serious risk of unnecessary segregation of adults with physical disabilities in Colorado in nursing homes. So in March of 2022, we issued a letter of finding in that matter, and underwent negotiations with the state until September of 2023 when we filed the case in the district of Colorado. That state is scheduled to go to pretrial conference in early 2026 as of right now. And the parties are undergoing court-ordered mediation.
PATRICK HOLKINS: So I'm going to talk about two cases, also litigation matters. One that is active and one that has closed. The first is United States versus Georgia. I'm very honored to be able to give this update in front of Crystal who is a member of that team. The United States versus Georgia is also long-standing litigation. The complaint was filed in 2016. What it's about is the state's unnecessary segregation and denial of equal educational opportunities to children with behavioral health disabilities.
The state has operated for decades a program called GNET and that program entails regional centers where children with behavioral health disabilities are placed through an team process and in those facilities, denied equal educational opportunities relative to their peers without behavioral health disabilities, and the core premise of the case is these are children who could be served appropriately in more integrated educational settings. Most notably in their home schools closer to their families.
And we paused the litigation for years while the appeal was working its way up and this is also in the 11th Circuit and so the question of whether the attorney general had authority to file suit under the ADA needed to be resolved and fortunately, it was resolved in a positive manner and we were able to move forward. And so now we have completed discovery, and submitted our reports and also dispositive motions. The state filed a motion for summary judgment on everything. We filed a motion for partial summary judgment on whether the state controls --
There also have been cross-motions on pretrial matters. All of those will be argued in Atlanta in April, so the team is preparing for those oral arguments.
But the hope is that shortly after the court issues its rulings on dispositive motions, we will get a trial date. It hasn't been scheduled, but this is a trial years in the making, and kids continue to be unnecessarily segregated and denied equal educational opportunities in these programs so we're hoping to resolve it quickly.
The next case I want to talk about is United States versus Mississippi. Has anyone heard of United States versus Mississippi?
Yeah, I think that sums it up pretty well. I worked on this case for as long as I've been in the special litigation section. And it has also a long history. Our findings were issued in 2011 after a year-long investigation. We spent years negotiating with the state. It was fruitless and we filed a lawsuit in 2016. We had a long discovery period, culminating in a five-week bench trial before Judge Reaves, also a great audience for our cases. And that trial resulted in a really fantastic liability order.
And ultimately, a remedial order as well that followed a two-year process of working with the special master, first to try to reach agreement with the state on really a joint proposed consent degree or court order, and then ultimately, we couldn't reach agreement and so the court just ordered a remedy, largely tracking the special master's proposal, and at that point, we had a final judgment, and the state promptly appealed to the Fifth Circuit. Go ahead. For those who are not familiar with the case, what is it about?
PATRICK HOLKINS: I'm so sorry. The case is about adults with serious mental illness who we allege and proved at trial were unnecessarily segregated in state hospitals. The State of Mississippi has four state hospitals varying in size and the core claim is that they didn't need to be there. These are individuals who could be served in their homes and communities if the state adequately invested in community-based services, services like supported employment, supported housing, mobile crisis services, crisis stabilization. There's a comprehensive suite of services that we sought to expand and ultimately, did expand through litigation. Thank you for that.
If I skip over stuff, let me know. So while the state was appealing the case, portions of the court's remedial order were stayed. Most of it was impact. And that gave us time to implement the remedies that were in the order, and it was very valuable. We achieved a lot in the close to two years while the appeal was pending. The state has dramatically expanded intensive services, supportive employment, supported housing not so much. It has overhauled its discharge planning procedures in the state hospitals. We were very happy with the progress that we made, but, of course, we had hoped for more before ultimately, the Fifth Circuit decided that the district court got it wrong, both on liability and on remedy.
So there are a couple of key takeaways from the Fifth Circuit's decision. The first is that it really broke from an unbroken string of precedent in finding that there is no liability for individuals at serious risk of institutionalization. That is not an actual theory under Title II. However, it's important to note that the Fifth Circuit's decision as written in our briefs was tied to the facts of that case. So we, of course, completely disagreed that it's the wrong result. It does not take into account the regulatory framework, and the extensive case law that has developed this issue since 1999.
So while we completely disagreed with the results, our focus right now is on limiting the damage in the Fifth Circuit and as applied to the unique factual circumstances of United States versus Mississippi. The Fifth Circuit's decision also calls into question the availability of systemic relief in our cases, which is something that we're also grappling with. It's really a significant consideration.
The court found also that the remedial order was impermissibly broad and so it vacated both the viability decision and the court's remedial order. That case is now closed.
The department decided not to pursue rehearing en banc or cert petition. And so we are moving forward, but proud of the work that we did in Mississippi and really the transformative effective it had on people in that state. Please.
Attendee: It's a terrible opinion. And one of the things about her jurisprudence is she gets wrong understanding of what Olmstead said and what she does is she says you have to consider Kennedy's opinion in Olmstead, which gave the majority, and that's wrong. It's Stevens that gave the majority. (inaudible).
PATRICK HOLKINS: I completely agree. Thank you for pointing that out and I will say that one of the realities that we have to confront post-the Fifth Circuit's decision is other states facing Olmstead matters are picking up on reasoning, flawed or otherwise, in that opinion and trying to leverage it to their benefit. I've seen a similar argument made in our Georgia case, suggesting that the Kennedy concurrence is controlling.
You read it right the first time. So I think that's a good place to stop on Mississippi. Should we move on to statements of interest? Any other questions?
LINDSEY WEINSTOCK: I will say also I think in the Florida appeal, the issue of at risk liability under the ADA and Olmstead has become more of an issue that Florida has tried to emphasize, despite it being less of an issue, less of a legal issue that they had raised before the Fifth Circuit opinion in Mississippi came down and what we saw was less of a focus on the legal arguments or the legal decision that was made in Mississippi by the majority of the panel and more of a focus of well, how does the record support the actual relief that was granted in the injunction or what was implemented in the injunction, which is, obviously, a position you want to be in than having a legal principle upon which the relief was made to be questioned.
But we'll see. I think where the circuit courts go in the future with this issue is really important. And so obviously, it's a consideration for us.
Attendee: I'm trying to work out in my mind the relationship between the requirements of Title II and how they interact with the Department of Education's Title IV regs. In alleging a denial of meaningful access to education, to what extent did you reference the 504 regs, subpart B.? Were those part and parcel of the litigation? Or do you find a right to access to education separate and apart within Title II?
PATRICK HOLKINS: The real point of our claim is entirely under Title II of the ADA and, in fact, the state has sought to really move the case or move it forward based on the theory that we failed to exhaust remedies under the IDEA and we have consistently argued at the motion to dismiss stage, and now, in response to the state's summary judgment motion that this is a case, both claims, the Olmstead claim, unnecessary segregation and the depravation of equal educational opportunities claim are squarely housed under Title II of the ADA.
And so we have really pushed back on the narrative that this is an IDEA case concerning access. (inaudible).
PATRICK HOLKINS: It's injunctive relief. The relief that we're seeking is the expansion of integrated educational services and supports that would keep these kids out of GNETS in the first instance and for the children that remain in GNETS access to equal educational opportunities. We can chat afterward.
Attendee: I would love to, thanks.
LINDSEY WEINSTOCK: I'm going to talk next about statements of interest, which are a unique vehicle that the DoJ has to express its views on the law and help educate supports that are confronting questions relating to the integration mandates. To help courts that are confronting these issues in lawsuits where we're not a party to understand how the legal framework works, as well as to help it decide those issues, but we don't take a position on the merits of any of these cases. We just explain the framework. We help contextualize the arguments of the parties, and we sometimes do say well one party gets it wrong or one party is arguing something that's irrelevant legally under this framework.
So I'm going to go into a few specific statements of interest that we filed in the last couple of months. The first early in 2023 was Timothy B. versus Kinsley in North Carolina, a class action on behalf of children with disabilities in foster care. It alleges unnecessary segregation of foster children in psychiatric residential treatment facilities when the children could live in the community with appropriate services, such as mental and behavioral health services.
So the state filed a motion to dismiss in the case, arguing that wouldn't failure to allege that state treatment professionals had determined that community placement is appropriate for the plaintiffs was a failure that should result in dismissal of the case, that the plaintiffs failed to allege that children's parents, guardians or custodians, including state child welfare decision makers affirmatively chose community services for the children, means that community services were opposed for those children under Olmstead.
And also cited the fact that procedures, that the state's own procedures require parent or guardian consent for PRTF placement as something that defeated an Olmstead claim because of evidence of community placement. It also argued that state court review of PRTF placements precludes ADA Integration Mandate claims. And it argued there was a lack of standing because of lack of causation and redressability. Specifically that local entities and county entities with their own obligations under the ADA administer the programs and services that the children need, and we filed a statement of interest in the context of the motion to dismiss briefing, addressing each of those arguments. We clarified for the court that plaintiffs need not rely on the state treatment professional determination to show that community-based services are appropriate, and can rely on other facts, such as eligibility for community-based services.
Indeed, a lot of the children had been deemed who were placed in PRTFs to be deemed eligible for community-based services.
Also, that the needs of kids receiving services in the community right now are the same or similar to the needs of children receiving services in institutions. That's another type of fact or allegation that would be sufficient to allege appropriateness under Olmstead. With respect to the argument that an affirmative decision or choice -- expression of affirmative desire for community placement needs to be alleged in order to allege non-opposition, we clarified for the court that children in child welfare facility do not need to allege that the adult decision makers chose community placement because the standard is not did you affirmatively choose? The standard is do not oppose community placement.
Similarly, if consent to receive services in an institutional setting doesn't necessarily mean you're opposed to receive services in a community setting. Finally, we clarified for the court that a state decision maker cannot oppose community-based services for a child in its custody as that would create a loop hello that would swallow Olmstead in the same way that requiring a state treatment professional's assessment of appropriateness would swallow Olmstead if that were the only way that you could prove appropriateness because then the state would be able to get it around the Integration Mandate effectively.
And courts have universally decided that in the appropriateness context, although I think there's less existing case law in the opposition, non-opposition context, the same reasoning applies. As to the preclusion argument, we clarified the state court proceedings that consider different evidence and apply different legal standards don't preclude Integration Mandate claims, because there's no full and fair opportunity to litigate an integration claim in the context of a particular placement decision hearing. That doesn't, for example, consider a lack of integrated placements more systematically as opposed to in reality, whether a specific placement exists for a specific child. And there was a recent fourth circuit case that I believe discussed that same principle.
For the standing argument, causation and redressability, we clarified that it's sufficient for a plaintiff to allege facts showing that the public entity administers services in a manner that results in unnecessary segregation. States can't contract or otherwise delegate away responsibility under Title II to ensure that integrated services are available. The plaintiffs in the case did allege that the Department of Health and human services in the state oversees all programs and services at issue, including Medicaid and the state child welfare program and we said the fact that you oversee, administer, fund, plan that service system is sufficient for causation purposes at the motion to dismiss stage. Yeah?
Attendee: I might have missed it. Did your statement address the issue of what about the role of guardians, non-state guardians, but parents and parental guardians, family guardians, whether or not they could override a non-opposition decision for the child?
LINDSEY WEINSTOCK: I think broadly that was addressed. I don't know if it was addressed specifically, that question. Instead, I think the argument that was made about parents or guardians was to the extent that they were the paying decision-making authority, they would have had to consent, and that consent was not sufficient to establish opposition.
Attendee: But they specifically did say they opposed?
LINDSEY WEINSTOCK: I don't think there was an example of that because I think the named plaintiffs had made allegations via their guardian ad litem that they wanted community-based services and so there were allegations of affirmatively desire for community-based placement from the named plaintiffs. So I don't know whose word matters, the question was addressed. It just cannot be that the state gets to oppose.
Attendee: I think there's some case law that says they can't override a decision by the personal guardianship who expresses a desire to be placed.
LINDSEY WEINSTOCK: Right, and the placement decision question might be different than the question of whose word would matter for purposes of evaluating opposition under Olmstead.
PATRICK HOLKINS: Nothing more to add.
LINDSEY WEINSTOCK: I just wanted to make sure. Anything else on that case before I move?
Attendee: One more question.
LINDSEY WEINSTOCK: Please.
Attendee: So I think correct me if I'm wrong, but sometimes, statements of interest then leads eventually to possible intervention. Is there any sense in this case of you maybe can't say we're going to have more of a role in the case -- (inaudible).
LINDSEY WEINSTOCK: Yeah. I mean, I don't know that I would be able to say I don't know. I don't know if I would be able to say if I did. I think the question of whether to intervene also has its own process that we have to go through. There has to be -- setting aside even memos, there has to be some form of investigation and finding that would under the requirements specific to intervention have to be met.
I wouldn't say that there's a direct path from an SOI to intervention or filing our own. It's a separate inquiry. And in this case, I don't know.
Attendee: I just wonder maybe it's very case specific if a judge would be more likely to take your opinion into account if you had a higher status in the case than just a statement of interest.
PATRICK HOLKINS: I will say, I've seen judges rely on our statements without intervention in meaningful ways. So I think these statements of interest have had an impact on these groups represented without a need for intervention.
LINDSEY WEINSTOCK: I've seen the same and sometimes, we're asked to participate in oral arguments as well and talk about the legal issues that might be thorny or that the judge might not have familiarity with. We're happy to offer whatever assistance at that phase that we can.
Attendee: Thank you for that. Very beautiful.
LINDSEY WEINSTOCK: I'll hurry through the rest of these. We filed two statements of interest in September of 2023 in that case. It's a putative class action on behalf of adults with a range of disabilities, mental and physical health disabilities living in nursing facilities who are not being provided community-based services. We waited on the motion for class certification where the state argued that plaintiffs receive lots of different services and lots of different agencies so how could this be a class action? And we clarified for the court that Olmstead cases almost always raise common questions concerning the defendants' systemic policies and practices.
And that relief in a single injunction is often appropriate to remedy the unnecessary segregation of a large group of people. We also filed a statement of interest on the motion to dismiss in which the defendants argued that there wasn't an injury, in fact, under Article 3. They argued that the plaintiffs, what the plaintiffs had alleged was denial of specific services, that they were required to allege a request and refusal for, but we clarified both that unnecessary segregation is an injury, in fact, and that there's no request and refusal requirement under the Integration Mandate.
Finally, the most recent statement of interest that we filed was in a case in Maryland, March 4th of this year. This is a putative class action on behalf of children with mental health disabilities in the state's foster care system who were institutionalized in psychiatric hospitals and other institutional settings, despite having been cleared for discharge from those settings.
In the SOI which is the motion to dismiss stage we explained how the Integration Mandate applies to children who have been medically cleared for discharge from psychiatric institutions, but who remain institutionalized because of a lack of available community placement. We clarified the plaintiffs' eligibility for a program makes plaintiffs qualified under the ADA, but a treatment approval's of a patient for discharge demonstrates appropriateness under Olmstead for receipt of services in integrated settings and that Integration Mandate claims to not require showing of discriminatory intent, disparate treatment or impact.
You can see there's a variety of ways and issues that we can get involved in, usually clear legal issues and explanations to the court. Sometimes, these are obvious issues that we as advocates know about and understand, but that courts may not have encountered before and sometimes, they're issues that we see, coming up to the fore a lot more that we want to address.
So standing issues, issues of causation and redressability, issues of whether and how systemic claims are made.
Those are important issues that we address in our own cases and so are important for courts to understand across the country.
PATRICK HOLKINS: We're going to highlight a couple of compliance monitoring matters, but we're running short on time and I want to make sure if folks have questions that they would like to ask and that the full group may benefit from, please ask them now. Please. Go ahead.
[Inaudible Question]
PATRICK HOLKINS: All the time. All the time. Many of the complaints initiating investigations are submitted by protection and advocacy organizations. They are vital partners for our work. We couldn't do it without them. Other burning questions?
Attendee: How do you get involved?
LINDSEY WEINSTOCK: Everybody in the room is a practitioner. We keep track of cases that are filed in the area.
[Inaudible Question]
PATRICK HOLKINS: Honestly, I don't think you can go wrong. I would start with VRS. Certainly, the educational opportunity section will have a real opportunity, as well. You can be assured that reviewers in each section will talk.
Attendee: Has there been any development or advocacy in the Baker Act? In recent years?
LINDSEY WEINSTOCK: Can you explain what you mean?
Attendee: The Baker Act, you can have your rights taken away from you if you're considered a danger to yourself or others and committed to a facility.
LINDSEY WEINSTOCK: So we haven't had any matters in the Baker Act proceedings. It's an interesting question how state, both criminal and civil commitment statutes and processes interact with Olmstead and certainly, SBL and also DRS have had many matters that kind of address or have had to address those sticky issues, but generally, because our authority is to enforce the ADA, we tend to try to stick within that vein. Especially since there can be preclusion issues that arise because of ongoing issues.
PATRICK HOLKINS: States oftentimes use their civil commitment laws as a shield against Title II liability. We saw Mississippi do that very ineffectively. They said basically that chancellors, county-level judges are making commitment decisions based on state law and if they get it wrong and decide that this individual should be committed to a state hospital, it's opt in. The court didn't buy that because the whole reason they were there in the first place is because the services in the state were not available. The state has inclusive authority for designing, regulating, funding the statewide community-based services. The judges saw through it pretty clearly. I haven't seen that argument land much of a punch in our cases. At least not that I'm aware of.
LINDSEY WEINSTOCK: The fact that cases like the fifth circuit and Mississippi have had specifically the part of that decision that says Olmstead claims are inherently individualized strikes a real blow to that theory because then you can't say it's not about an individual and at what point they were institutionalized and did they really need institution versus three months later?
It makes it about those individual questions as opposed to the evaluation that Patrick clarified of whether there's an adequate base of community-based services available that can help people avoid institutionalization in the first place.
PATRICK HOLKINS: Other questions?
Attendee: I've been really stressed that Olmstead was going to go away because it's so powerful and there's so many ways to use it. How do you deal with it?
LINDSEY WEINSTOCK: In Florida, in the appeal, the way we dealt with that argument, second to say that even if they got it right, even if at risk is not a basis for their liability, a district court judge can implement injunctive relief to present unnecessary institutionalization and you can order injunctive relief to correct that. So that's one way that you could do that. It's one way we have addressed that. The other way, if you're looking at litigation across the country and how do you prevent the spread of opinions like that, it's strategic in terms of the cases that you take and the arguments that you make. And which court.
[Inaudible Question]
LINDSEY WEINSTOCK: And thankfully, I don't know, as Patrick mentioned, you can point to parts of it that assert that well this case is different than those other cases that said that at risk was fine. So arguably there's no circuit split even now, but you never know.
PATRICK HOLKINS: And in ways, the Fifth Circuit even acknowledges that. They think the facts in Mississippi from many of the other circuit court cases, in which the court found that adverse liability was actionable. So we're going to continue to vigorously prosecute cases under an at-risk theory.
LINDSEY WEINSTOCK: You have a good textual argument.
PATRICK HOLKINS: I know that we're out of time. If folks need to move on to the next thing, that's fine. If you want to stick around and hear a little bit about compliance monitoring, we can talk about that. But thank you all for making the time for this and so it was nice to have a chance to talk with you.