Litigation Strategies and Techniques in Olmstead Actions

M. GERON GADD:  So we will get started.  All right, thank you so much, it's very nice to see both of you and we're delighted that you're here.

Just to sort of begin, my name is Geron Gadd, I recently joined the Health Well Program as a senior attorney and I am here with my colleague, Elizabeth Edwards, who has been a long time senior attorney with the National Health Law Program and we have dealt with various types of Olmstead actions, through preliminary injunction, all the way through trial -- sorry, I'm just seeing the chat.

We can make them co hosts.  I don't think it's necessary to do so.

So what we are hoping, we wanted to have this be a -- we have information to share, but wanted to have a lot of times for questions and discussion.

And hopefully given the number of people, we really can expand the ability to do so.
And Rose and Jennifer, what I would say is we have a fairly detailed presentation, but we have not assumed sort of any particular level of knowledge or experience.
So while we've, um, we've built in time for questions, we also encourage you, if there's anything -- 'cause we're trying to go through different, um, pieces of the preparation, litigation, and kind of also the landscape of Olmstead litigation.

If there's anything about this that is not clear or you have questions, please, um, please definitely stop us, 'cause we would love to do so.

Um... and also, at the end, given that this is sort of detailed, we will give you our contact information.  And if anything occurs to you after you've had a moment to sort of think about it or think about how it applies in your jurisdictions, we would love to continue the conversation.

So I am going to turn it over to Elizabeth to give you a little bit of a quick overview of the National Health Law Program 

ELIZABETH D. EDWARDS:  Thank you, we have had other people join, it was a little late coming in.
Welcome, everybody.  As Geron said, we have worked with the National Health Law Program, also called NHeLP, if you don't know about it, come see us, we do a lot of Olmstead litigation, that's part of our Medicaid cases.

We work with disability rights advocates in all states and we have various coalitions, we have offices in California, D.C., and North Carolina, although we do practice in all of the states.
If you want more information about us, please see

Next slide.  

So I just wanted to quickly flag we have an equity stance.  There is a much longer version of this on our website at the link at the bottom of this page, but I want to say that we firmly believe that health equity is achieved when a person's characteristics and circumstances, all sort of things listed out there do not bring the outcome and it's all related to disability and right to communication.

Next slide.

I also wanted to flag that we have quite a number of resources on our website.  This highlights some of the major kind of guides that we have, but we also have all -- a lot of our litigation posted, including amicus activities and fact sheets.

I will admit sometimes our website is difficult to navigate and find things and if you think we probably have something on a different subject, we probably do.  You might want to reach out and ask somebody, because it may not be easy to find on the website.  

M. GERON GADD:  Excellent.  So quickly we want to begin with an overview of the topics that we plan to cover today.  The first is we're gonna talk about the right of people with disabilities to community integration.  And this really includes the right of people with disabilities to live and receive services in the community, but also their right to interact and participate fully as members of the community.

And discovered that right is reflected in many of the Olmstead cases that have been brought today, whether it's deinstitutionalization, and when we use that term, what we mean is people who are currently in restrictive institutional settings, transitioning them into the community.
Or people with disabilities who are currently living in the community, but are at risk of institutionalization or otherwise at risk of reduced community integration.

And by that, we mean reduced participation leaving their homes going into the community, which really talk further about.

We want to cover some trends in Olmstead cases and there we'll talk about, you know, just different types of Olmstead cases, potential triggers in the landscape that often give rise to Olmstead cases, as well as some problem areas for Olmstead litigation.

Various defenses to Olmstead claims.  And by that, we really mean whether it's integration mandate claims or methods of administration claims paired together that are brought under the Americans with Disabilities Act and/or the Rehabilitation Act.

Then we'll discuss some practical challenges in Olmstead litigation and that will go really from, you know, when to bring an action to defining the remedy and to address various decision points and issues to consider as you're preparing Olmstead litigation.

Emerging issues, which will include the end of the public health emergency provider capacity and service limits issues, as well as the expansion of thinking about Olmstead into other settings.
And that really will, again, address the issues that can trigger new Olmstead litigation and some dangers and to be mindful of as you think about additional Olmstead litigation.

And then a robust discussion.

And just a word quickly on the format.  We have built in various points in the slides kind of so that we can pause for questions, but we've also reserved 30 minutes for what we hope will be a robust discussion.
But with that said, if you have questions, please make sure to either put them in the chat or raise your hand; we'll do our best to monitor those hand raises if you have questions throughout.

Okay.  I'm going to turn it over to Elizabeth.  

ELIZABETH D. EDWARDS:  Thanks, Geron.  

So as Geron mentioned, we're going to very quickly go over Olmstead.  We kind of assumed that most people who signed up for this session have the basics, but we didn't want to not go over it at all in case there's people who are interested in this sort of type of litigation but don't know a whole lot.

So just quickly wanted to go over where there is a statutory right to community integration and it's found both under Title II of the ADA as well as Section 504 of the Rehabilitation Act.

And the language is included here.

I would also note that I think there are some theories out there about whether or not it is included in Section 1527 of the Affordable Care Act and I'll turn it over to Geron to talk about the regulations.  

M. GERON GADD:  So the ADA actually directs the Attorney General to the Department of Justice to promulgate implementing regulations which the Department of Justice did and we're going to talk about those.

Just one thing to quickly note, is that while there is some disagreement as to the level of deaf rights that these regulations are accorded, they are broadly set.

The first thing for the ADA which has a regulation under the Rehabilitation Act is what's called the integration mandate, which basically provides that public entities must provide services in the most integrated setting appropriate to the needs of qualified individuals with disabilities.

And the most integrated setting is defined as the setting that allows for the greatest interaction with people without disabilities.

So really what that integration sets is a fairly high bar and has a fairly robust definition of what integration means.

And we will talk a little bit more as we move forward into the discussion in certain areas about what that looks like.  But it is fairly robust.

The second critical regulation that you'll see in a lot of the cases is what's called the methods of administration regulation and it is, again, has a pending regulation under the Rehabilitation Act that basically prohibits a public entity from using criteria or methods of administration that discriminate on the basis of disability.

And finally, um, there is the provision that provides that a public entity must reasonably accommodate people with disabilities to avoid disability discrimination.

And this is sort of mentioned in the Olmstead decision itself.  But the reason that we mention it here is just to note that sort of these regulations, both separately and together, require public entities to take action to avoid engaging in disability discrimination.

So, now we're gonna move to a more specific discussion of the Olmstead decision itself.  

ELIZABETH D. EDWARDS:  Thank you, Geron.  

So as many of you all are familiar with, the Olmstead decision is from the U.S. Supreme Court 1999, and it essentially found that unjustified institutional isolation of people with disabilities is a form of discrimination.
It set forth a three prong test that, first, the community placement must be appropriate.  The individual does not oppose that placement.  And the placement can be reasonably accommodated, taking into account the resources available to the state and the means of others with disabilities.

These sound fairly simple and straightforward.  But as Geron and I will discuss and hopefully others will sort of join in, the litmus test is applied and what is reasonably accommodated.

In the Olmstead decision itself is the fundamental alteration defense and that is where the state will say it cannot be reasonably accommodated, there are too many changes that has to be required for us to meet the needs of the individual plaintiffs.

There's also what is called an Olmstead plan.  For many of you, you are state advocates, you may sometimes laugh at your state Olmstead plan, because it may be very old or they may not have updated recently, but there is a defense around the state Olmstead plan.  And states, after Olmstead, were supposed to create this plan how they were going to meet the requirements, um, of this decision and of the just general statutory requirements that Geron and I discussed earlier.

After the decision, there were quite a few, um, sort of pieces of guidance issued.  So there's a series of Olmstead letters that came out from what used to be -- it had a different name, it was HCFA and now it's known as the Medicaid and Medicare services CMS, issued Olmstead letters, a series of them we highlighted some here, Olmstead letter number four, that's one of the most commonly cited letters, it talks about Medicaid services and Olmstead but there's also a statement of the U.S. Department of Justice on Olmstead as well and their website, you can see a lot of their actions to enforce the ADA and Olmstead there too.

We will talk much more about Olmstead defenses later on, but wanted to highlight just the very basics of the decision here.

And if you have never seen a picture of Elaine and Lois Curtis who were the main plaintiffs in Olmstead, that's a picture of them there.  

M. GERON GADD:  All right.  So, before we go a lot further, we wanted to sort of give you a flavor of the different types of Olmstead cases that have been brought.

As we talked about, you know, earlier, there are different ways that this comes up.  One of the core areas, of course, is the deinstitutionalization context, where you have a person with a disability who is living and receiving services in an institutional setting.

And that can be a psychiatric hospital, that can be a nursing facility.  It can be, really, any type of institution.  And there are, um, there is some -- obviously as these cases evolve, sort of defining exactly what is an institutional setting is subject to some evolution as well.

But, you know, one of the cases that we tried just last fall is called Brown versus the District of Columbia and this is a case that AARP Foundation, the Disability Rights D.C. and others tried in the fall of 2021, this is a class action on behalf of residents of District of Columbia nursing facilities who can and want to receive services in the community but need transition assistance in order to do so.

So in that case, the goal is actually to get people with disabilities out of institutions and into the community where they can receive services.

A different category of cases we call loosely risk of institution cases, and what that means is that you have individuals who are currently living and/or receiving services in the community, but for a variety of reasons that are challenged in the litigation are at risk of being institutionalized.

The risk of institution claims have been broadly recognized, not terribly long after the Olmstead decision itself, one of the first was called Fischer versus Oklahoma Healthcare Authority and this was a case where it was a challenge to the state's policy limiting prescriptions for persons who were enrolled in a Medicaid waiver to five per month.

Where if you were in an institutional setting, that monthly limit did not apply.
And the essence of the claim was that the limitation placed those who are living in the community at risk of having to go into an institution to obtain what they needed.

A case that Elizabeth litigated in North Carolina that ultimately went to the Fourth Circuit is called Pashby versus Delia and this is a case where the plaintiffs challenged and stripped her eligibility requirements in her in home personal care services where the eligibility requirements for obtaining personal care services in adult care homes.

So the essence of the claim there is the eligibility or the application of those eligibility criteria and requirements would require an individual who needed more care to go into an adult care home as opposed to being able to receive that in their own homes or in other settings.

In Clinton L. versus Wos, which is another case that Elizabeth was involved in in the North Carolina District Court, this is a case that challenged local management's entities decision to reduce the reimbursement rate that was paid to providers in supervised living services for people with intellectual disabilities or mental illness who needed 24 hour living supervision but did not need more restrictive or more intensive institutional situations for their care.

And that case was challenging in that the allocation or the criteria by which those reimbursement rates were applied would actually place individuals at risk of having to go into more intensive settings in order to receive the supervision that she needed or that they needed.

And then finally, another sort of representative category of at risk cases is Price versus Shibinette filed in the District of New Hampshire filed on behalf of people who were receiving long term care services, including personal care, were not receiving those home and community based care services.
And as a result were at risk of hospitalization or nursing facility placements where they could receive those supportive services.

And obviously the issue there is that the non provision of the services placed the individuals at risk of having to go into an institutional setting to get care, and that one really is representative, because a lot of the cases are variance of either eligibility criteria or waiver based situations where not getting what you need places you at risk of having to go into a restrictive setting to sort of get what you need.

And then the final category, we sort of denominated as community integration, um, but these are where people are currently living in and receiving services in the community, but the issue is that the non provision of the services that are at issue either prevents them from leaving their homes or being able to have sort of robust interaction in the community which did not -- it leads to them being in more segregated situations than would otherwise be the case.

And there's a really wonderful decision out of the Seventh Circuit that I encourage all of you to look at, because it really has some wonderful language in terms of what's at issue which is stalled Steimel v. Wernert and there is a case Waskul versus Washtenaw which talks about waiver of participants to get the services they need so they can actually engage in the community.

It's also there have been Olmstead cases involving employment and restricted employment, one in Oregon and also in foster care and other settings.

So it kind of gives you a sense of the breadth of potential Olmstead claims and we're going to talk about some of the risks and complexities that are associated with those cases as we move forward.

But really, just kind of wanted to give you a sense of what the landscape looks like.

Now, Elizabeth is going to talk a little bit about state actions or environmental situations that trigger Olmstead cases, and then we're going to come to our first pause to talk about anything we've discussed so far 

ELIZABETH D. EDWARDS:  Yeah, one thing to highlight, when you jeopardize Olmstead, there's hundreds and hundreds and hundreds of cases and those are just sort of a sampling.

One thing I did want to flag is we put Clinton L. on there not because it was successful or not successful, it was one of the few times that the court started to analyze what does risk institutionalization means but it's one of the rare instances where the court looks at how at risk do you have to be at sort of a trial stage.
So it's not often one that comes up, but I wanted to flag it for you all.

To talk about potential triggers for Olmstead cases, this can vary quite widely.  It's commonly most of them now we're seeing that about when somebody has had their services eliminated or reduced or as Geron mentioned in some of the cases, just not being able to get them.

They might be sort of theoretically authorized but not able to access them and that's a needed community based services which could be where an entity or a state or a managed care organization doesn't authorize enough services or where the person just cannot find the services.

And then another way that it comes up is when the state may offer services in institutional settings but not offer their equivalent in the community.  So sometimes you'll see this happening, for example, for people with traumatic brain injury or specific populations where they just don't have an array of community based services that really work for them, but they can receive services in a nursing facility or some other type of non community based setting.

But as Geron mentioned, these are very fact specific.  So not all instances of elimination or reduction of services might make a good Olmstead case.  There could be something where it's a major reduction of services and it's still not a great case.  Or it could be something where it's a fairly minor reduction in services, but it's significant enough that it actually makes a very good case.

For example, in Fischer versus Oklahoma, the five prescriptions difference may not seem that big, but in functionality, it is very significant.

Whereas a decrease in, you know, ten hours, you might not be able to prove that it's enough of a risk.  But it might depend on the person's circumstances.

So it's really very, very fact specific and it might trigger an Olmstead issue, but not a great case sometimes.
And so that's a very, um, specific analysis to go through.

Hopefully after we go through this presentation, you'll have some better ideas of maybe how to analyze that.
So, some of the problem areas for Olmstead cases.  I think ripeness is particularly problematic sometimes, because when is the person at risk enough or when is the person lacking community integration enough to trigger a good Olmstead case.

And this has often become more challenged in some of the more recent decisions.  You'll see the state is bringing it up as a defense more.

There's also a difference between whether or not an individual is going through certain circumstances or changes that might trigger an Olmstead action, versus whether a broader policy change by a state or a managed care organization, for instance, have they implemented a new limit on services or a cap on services?

And is that affecting everybody equally?  Or is it just affecting a certain population?  Or is it just individual?
Sort of working through whether or not it's a policy if that's the problem or whether it's sort of the individual circumstances.

There is also the big issue that Geron flagged and that's been an issue in the Price case is whether or not the state is responsible for private agencies to serve plaintiffs, whether it's because of the lack of providers or straight out refusals of certain providers to provide services to individuals.

So those are all sort of various ways in which it can be problematic and might trigger an Olmstead decision.
And some of those, we flagged them, because there are cases that go kind of both ways.  There have been successful ones and there have been not successful cases on these different issues, especially the one about provider agencies.  That's becoming a more litigated issue.

So, I did want to flag, there are some very odd decisions out there under Olmstead.  So, for example, there's a case where a judge found that a plaintiff having a child during the relevant time period indicated a lack of risk.

Or individuals are not at risk because there was at least one provider, which doesn't really follow the lines of a choice and person considered planning, but the court said one is enough.

Or whether or not because the individual had access to an administrative hearing, to dispute the issue that was sufficient and that was not ripe for federal court.
There is a lot of mixed results in Olmstead cases and these are not necessarily [chuckles] tried and true things.

I mean, for those of us who are Olmstead advocates, the person having a child is not relevant.  And that's where the court went.  Just flagging that sometimes there are very odd results in some of these cases.
One of the other things that we wanted to flag as a potential problem area is that pleading has always been very important, but it's especially important, there has been some dicta, as well as some decisions, talking about whether or not the plaintiffs properly pled enough allocations of fact or were they pleading conclusions of law?

As well as failing to allege all of the elements of disability discrimination in an Olmstead claim with sufficient specificity.

So, just flagging for everybody, that judges are being much more, um -- and maybe it's the changing of how people are pleading things as well -- but judges are really looking at whether or not you have adequately alleged all of the components of a disability discrimination claim and an Olmstead claim, but also do your facts really support the claims you are making?

So, I just wanted to flag those important areas.

So I think we wanted to take a few minutes to see if anybody had any questions about some of the things that Geron and I have flagged thus far.

And just a reminder, the next things we're going to talk about are Olmstead defenses and, um, causation, some of the practical challenges.

So, we just want to make sure we hadn't lost people thus far.  

M. GERON GADD:  Mmm hmm, and thanks, David, for your question, that is actually what is up next, so we will address that.

So are there any other questions?  I'm trying to scroll through the grid to see if anyone has a hand up.  

ELIZABETH D. EDWARDS:  I don't see any.  

M. GERON GADD:  I don't see any hands up. 

ELIZABETH D. EDWARDS:  Get to the good stuff then. 

M. GERON GADD:  I will move on.  If I inadvertently missed you, put something in the chat and I'll stop.
Elizabeth showed you in a couple of slides that there are some elements of what we call an Olmstead claim, which is really a claim under the ADA, and, again, the companion claim under the Rehab Act.
And the first one is the standard of care defense and what does this mean?

The Olmstead decision itself recognizes, and sometimes you will hear this referred to as footnote 14, but recognize that there is no standard of care or particular level of benefits assured by the ADA.
And so a lot of the times, particularly in cases, for example, where what you're talking about is risk of institutionalization or, I mean, even in deinstitutionalization cases where what the plaintiffs are saying is you haven't provided me this service.

And as a result, I either can't get out of an institution, even though I can go and I want to go.
Or as a result of you not providing me this service, I'm at risk of going into an institution.
What defendants will come back and say is what you're really seeking is more services or better services and that what you are seeking essentially is to enforce a standard of care that doesn't exist under the ADA and so your claim should be dismissed.

And so this issue, in one of the previous slides I made reference to the Price case, and this was an issue that was extensively briefed in the motion to dismiss.
And we can get you that briefing.

But essentially the claim is, by the state, is what you're trying to do is say I have to give you something, more of what either I have been giving you or you want something new, and Olmstead doesn't cover that.
And so there's a -- it was also dismissed -- or the court in the Disability Rights California versus County of Alameda case recently was dismissed, in part, on this ground.

But it was largely a pleading issue.  And the court allowed the plaintiffs to refile, which they immediately did, or amend the complaint, which they immediately did in that case and has proceeded.
But if you think about instances where the services that are at issue are provided to some people in the community, just not the plaintiff or the plaintiff class, or that there's a case called Doxzon -- we can give you these cites, but we're trying not to have this be too weedy -- but where the services are provided to people in the institutional settings but not in the community, you'll have a fairly good chance to surmount a standard of care defense but that will affect how you plead what the plaintiff or the plaintiff class is not getting.

And how that is either a barrier to leaving an institution or create a risk of institutionalization.

Just want to flag here that causation, meaning whether the public entity's action or inaction is creating a barrier to exiting an institution or is creating a risk of institutionalization can also be a defense.
Elizabeth is going to talk about this extensively in just a minute.

So I'm going to move forward, but we want to flag that.

And then coming to David's and other people's questions, which is you will recall that Elizabeth mentioned that in the Olmstead decision itself and elsewhere, there is this thing called an Olmstead plan.  And sort of what is an Olmstead plan?

Is there liability if a state, you know, over these many years, after the Olmstead decision itself still doesn't have one, can they get in trouble for not having one and how does that work as a defense to an Olmstead claim?

An Olmstead plan is really in at its simplest form is plan developed by a state agency or a group of state agencies to get people out of institutions and provide them services in the community.

It need not be a document that says Olmstead plan at the top, right.  It can be a collection of documents.
Um, to David's point, to answer that are specifically, the question is if a state over these many years still doesn't have an Olmstead plan, can they be liable for not having that?

The reason that's a yes and no is, no, just not having it is not going to subject them to penalties, for example, by DOJ or CMS.

However, effectively working the state's ability to demonstrate that it has an Olmstead plan that it has implemented and that Olmstead plan is effectively leading to the deinstitutionalization of individuals and that it is moving people out of institutions at a reasonable pace is a defense in many instances to a claim under the ADA by a plaintiff or a plaintiff class seeking a reasonable accommodation.

And that's a lot of words.

So, what does that mean and how does that work?

In an Olmstead case, essentially what you have is a plaintiff or a plaintiff class saying you, public entity, are doing something or not doing something that is either keeping me in an institution or putting me at risk of having to go into one.

And so what I am seeking is a reasonable accommodation of whatever you're doing to either help me get out or prevent me from going in.

Courts, where a state has undertaken an Olmstead planning process, adopted a document or a series of documents that actually are a plan for getting people out of institutions, courts are reluctant to let an individual or a class of individuals by virtue of a lawsuit essentially jump the line where they've got a plan to achieve similar results.

However, if the population, the plaintiff or the plaintiff class, the population that's at issue in the perspective lawsuit is either completely, um, ignored by the state's planning, so there's the Pennsylvania Protection and Advocacy versus Department of Welfare have gone up to the Third Circuit and makes the point that if your group is omitted from the state's planning, then that's not going to be an effectively working Olmstead plan.
If they have an Olmstead plan that they haven't implemented, that too is not going to furnish a basis for a defense to an ADA claim.

And if it's not, if they have one that they are implementing but it's not moving people at a reasonable pace, then the failure to do so is gonna lead to a conclusion that it is not an effectively working Olmstead plan and, therefore, isn't a defense to an Olmstead claim.

The thing to note here, because I've also said a lot, is that whether a state has an Olmstead plan, whether it's implementing that Olmstead plan, whether it's doing so at a reasonable pace is an affirmative defense that the public entity bears the burden of establishing.

But it is often an incredibly fact specific inquiry.  And in litigation takes an incredible amount of energy to determine whether it's effective and whether it's going to be sufficient, um, as a defense.
So to sort of flag it here to say there is this thing if you're contemplating Olmstead litigation that you need to look for.

And not just finding the document, but also trying to go behind the document and figure out, you know, is everybody contemplating -- every relevant person with a disability contemplated by this document or documents, and is the state doing anything with it?

You need to think through that whole sort of line of inquiry to be able to think about whether it's gonna be an effective defense to your potential claims.

And sort of how.  What are the issues going to be?

Then finally the most, and this, I'm gonna sort of move through more quickly, because we will talk about it in various ways as we move forward.

The most recognized defense to an ADA claim and in Olmstead cases in particular is what's called the fundamental alteration defense, and this comes out of Olmstead, um, and it basically is that, you know, if you have a person with a disability who can live in the community, wants to do so, the state is obligated to provide that individual services in the community, unless doing so would amount to a fundamental alteration of the program or the services, um, at issue.

And so there is much that we don't know about what a fundamental alteration will be, but there are a couple of things that I just want to flag as you're thinking about it.

Number one, and this comes out of the Brown, the D.C. circuit's decision in the Brown versus District of Columbia case, this was a 2019 decision, that the court can find that the requested remedy can affect a fundamental alteration of the system if it imposes an undue administrative burden.

The affected remedy can also amount to a fundamental alteration to the state system if it imposes an undue financial burden.

But it's important to note for a fundamental alteration based on the cost of the remedy requested, it has to amount to an inequitable or unfair diversion of resources from one group of people with disabilities to another.

So, for example, if you say you need to get transition assistance, for example, in order to get out of a nursing home, the state can't say that's gonna take a lot of money from building schools, so it fundamentally alters our system.  That is not adequate.

What they would have to show is that it will inequitably divert resources that are intended for other people with disabilities.

And money alone is, in and of itself, is not sufficient to found a fundamental alteration, and this comes out of, really, that first, um, the first decision, the Fischer decision out of the Tenth Circuit in 2003 where the court recognized that, you know, services are expensive and essentially the state could always effectively defend an ADA claim by saying "Well, it's costly," it would always be able to do so.

And it has to be more than just budget restraints.

And finally, on fundamental alterations, I want to remind you and this comes out of a case called Radashuski -- and I can give you the case but we want to keep moving -- when the defense has alleged a fundamental alteration, you have to look at the services at issue and whether or not it's actually going to amount to an alteration of the system.

That case was a case involving skilled nursing services where the court spent a lot of time looking at do you really get, you know, one to one nursing services when you're in a nursing facility or what about in a hospital?

And looking at the nature of the service and the nature of that service in different settings to figure out whether what the plaintiff was seeking would actually fundamentally alter the system.

And I just urge that on you because it's easy to throw about the tag line fundamental alteration, but it is a very weedy inquiry and should be and you have to think about how that is going to play in your case.

Okay.  On to you and causation.

I am stuck.  Go ahead, Elizabeth, I will catch up with the slides.  Sorry.  

ELIZABETH D. EDWARDS:  So, there was a few questions about, um, sort of how does Olmstead work with risk of incarceration or in other settings, and there's a view and there's a recent area where there have been a few cases sort of going towards how does lack of services lead to incarceration?
And so there's a few of those.

And it's been used in prison cases, um, I would say for mixed success, in terms of how is there discrimination in a prison setting, which are -- I think that's pretty mixed.  And it's not -- particularly I don't think it's generalized expertise, but there is some out there [chuckles] --

[Talking over one another]. 

ELIZABETH D. EDWARDS:  And risk of incarceration is more of an emerging area.  

M. GERON GADD:  Yeah, I just wanted to say really quickly, in those cases where the ADA has been applied, the ADA, both that and the methods of administration, where it has been applied in prison context, it was not this unnecessary, like, the integration mandate version of the claim, right.

So, to kind of just to address this, and we'll come back to this sort of at the end, I am deeply concerned about the use of Olmstead to say someone who is, for example, has an interaction, goes into jail saying that the person's being held in jail, like, say, for example, they have a mental illness and they have a law enforcement encounter and then in jail and using Olmstead to say they're unnecessarily institutionalized.

Does that mean it can't be done?  It may, as the law continues to develop.  But that's a little bit of a different thing in the way that the ADA has been applied, for example, in, like, the Dunn case in Alabama or the recent case that survived a motion to dismiss in Louisiana.

Sorry, go ahead.  

ELIZABETH D. EDWARDS:  Yeah, I mean, one thing to remember about Olmstead typically is that the services can be provided in that setting, because that becomes an issue of how does community setting integration operate for sort of the jail and prison context.

And one thing that's been tricky and always has been tricky, it's becoming sort of, as you see cases that go further and where there's more factual development and the like, one is causation.

One thing to remember is most of the time, the plaintiffs involved in Olmstead action are complex human beings.  I mean, we are all complex human beings, but most people in an Olmstead action who are plaintiffs are at some level of risk of institutionalization.

They may have experienced short term institutionalization in the past or been long term institutionalized and be deinstitutionalized [chuckles] from an Olmstead effort.

And trying to pin down what is actually creating risk of institutionalization for an individual and whether it's related to the state action can be tricky.  But that doesn't mean it's not possible, because it's not, but if you're considering an Olmstead action is appropriate in a given circumstance, is how are you tying the state action or the state inaction, as the case may be, is the person's risk of institutionalization, institutionalization, or lack of community integration.

So how do you make sure you tie those things closely together?

So these are sort of some questions that we kind of ask ourselves is how does a reduction in services or policy change connect to the decline of health and safety, welfare, or increase segregation?

How are we also thinking about what other factors come into play that may also be creating a risk of institutionalization or decrease in community integration.

And as I said, here are some complicating factors listed, it's not all of them, but the plaintiff's health needs.
Also time, the more time that goes by, like as the case goes on, a lot of plaintiffs who are in an Olmstead action may have sort of changes in their own life circumstances, as we all do, whether they have a caregiver pass away or no longer be able to provide supports or just things change in life.

And how do those things influence a person's community integration and risk of institutionalization and there are other intervening factors.

There are other policies, the managed care company may leave or change managed care companies, there is a change in services, or there's lots of other intervening factors, and making sure that we can tie the lack of community integration and lack of services to the action that we are challenging and continue to keep that link together as we think about how the case moves forward throughout the life of a case.

So I think... if there's any sort of questions more about -- let me review the questions list or comments so far.  

M. GERON GADD:  I think we're pretty good.  I'm answering any last one. 


M. GERON GADD:  But I think we're set.

So, that means I'm supposed to go to practical challenges.
Do we, um, do we want to stop for just a second, um, and talk about any questions -- like, do people have any hands up?  



ELIZABETH D. EDWARDS:  Let me scroll through.
Let's move on to practical challenges; I don't see anybody's hands up.

M. GERON GADD:  Okay.  Here what we kind of wanted to walk through is once you're in the thick of it, some things to sort of think about, the first one is sort of when to bring the litigation.

You will recall that Elizabeth, um, Elizabeth talked a good bit about the authority in question of trying to figure out when is your claim ripe?

There really is a couple other things that I would want to flag, which is both in Alabama and in Kansas, I've had some success, and this is working with the Center For Public Representation, whom I'm sure, you know, many of you know, as well as the Alabama Disabilities Advocacy Program and Disability Rights out of

Kansas working with P&As, and depending on the local context and being able to serve a demand letter that makes sort of the merits of the claim really clear, but actually being able to engage and sort of stay in discussions with the relevant public entity that resulted in pre filing settlement agreements.

And so I throw that out there, um, if only to bear in mind that in some instances, Olmstead litigation, um, may be necessary.  It may not be, though.  Even in those instances, you need to fully prepare as though you're going to have to file, because inevitably, the things that you're gonna have to discuss, um, in the course of your negotiations, which in both instances took a couple of years.

So this is not necessarily a quick and dirty way to go about getting a remedy, but it is possible.  And in some instances, a desirable way to go in view of the resources that are required to litigate in an Olmstead case.
And if you have people on the other side of the table who, um, appreciate the degree of their risk and, frankly, want to do the right thing, sometimes that can be availing.

The counter of that situation if you determine if you need to file, do you need emergency relief?  If you're filing a case and there is an emergency, for example, to enjoin the implementation of a rate reduction or a policy change.

For example, a case that AARP Foundation and disability rights California called Brantley versus Maxwell Jolly, this began in 2009, there is a CODA versus Maxwell Jolly and a Darling iteration, and if you are doing some research, there is iteration of that case that reflects three different changes in policy that reflect that action.

But in that instance, what you have is change in policy in terms of amount of services that would be provided, right, so in that instance, you do need to take emergency relief, you've got to file and you've got to seek a preliminary injunction.

That obviously is going to influence your decision in terms of when to bring the case.

But sort of a countervailing situation that can affect when to file an issue is has the relevant public entity adopted some systemic reforms recently or are they imminent such as part of what you're seeking in your action is going to be provided and, therefore, move part of your case?

Or otherwise affect what the state's fundamental and alterational defense is going to be?
I'm happy to go through that but I wanted to take a couple of things to think about about when to bring a litigation question.

Then there's obviously the "on behalf of whom," whether it's an individual action or a class action, when does it become ripe?

Elizabeth has covered that.  And I am sort of mindful of our time, so if you have specific questions, we can come back to it.

But "on behalf of whom" really just reiterate that the class certification issue, particularly after Walmart, is becoming a more and more thorny one.

I commend to you a law review article that Stephen Schwartz and Katharine Rucker just presented is excellent and this talks about ADA particularly in systemic reform cases that outlines a lot of issues to bear in mind, and it is fairly complicated.

In terms of developing the record, a couple of things I just kind of wanted to tick through is you'll recall Elizabeth outlining a prima facie case of an Olmstead claim.

You know, the individual being a qualified person with a disability who can receive services in the community and wants to do so and can do so with a reasonable accommodation.

You know, before filing, really looking at your client's records to determine whether, for example, a number of the treating physicians say this person cannot live in the community, I'm not saying you wouldn't bring a case if there are a couple of those kinds of notations, because they're complicated.

I just urge you to really -- thank you very much -- urge you to sort of know what the state is surely likely to bring if you are in litigation and try to get into the record and those kinds of things can raise some pretty precarious evidentiary issues the further you get down the road.

Also bearing in mind how much of your proof needed, for example, to prove either the amount of services that a client is getting, the amount of services that a client is not getting that is part of your risk of institutionalization case is in the hands of third parties, right, in waiver context.

Obviously states typically contract with third party providers to provide that and thinking about what does it mean, um, to think about having your essential proof be subject to third party discovery.

How much information can you get, for example, through FOIA and engaged experts and looked at this issue and grappled this issue and caused issues with your client and/or potentially explored remedies and you might be able to get your hands on some of that information and think about how it affects whether you should bring the action.

How you might define your class if you're thinking of a collective action.  And moreover, how you might define the relief that you're requesting.

Again, the systemic reforms that you're seeking, think about potential movement, if you're thinking of a specific remedy or the state or public entity happily gives your client that relief, that might moot your claim and what does that mean for the class of individuals for whom you are seeking relief?

And finally, the remedy, I wanted to say to keep us going, as I relate to the nature of injunctive relief sought, really I raise that as how you're defining your class and how you define what the public entity needs to do over time.

Because public entities and organic services are different things, like, they change in the filing of any temporary injunctive relief all the way through trial and thinking about the things that are around by the time trial comes and how that affects what your clients need, what you seek for your clients, but also thinking from the litigation perspective, how to alter the way you litigate the case.

And finally, just quickly noting, that the scope, particularly in these cases, right, so we talked about, okay, there's this whole, you know, cottage industry of Olmstead litigation on behalf of waiver beneficiaries who may or may not be getting community long term supports and services.

And as a result of that, going into institutions, right.

That is a Medicaid waiver program.  But the public entities responsibility not to serve people with disabilities in unduly restrictive and unnecessarily institutional settings is not exhausted on its obligations under the Medicaid Act.

One case that's important to look at in this case is one case out of the Seventh Circuit we talked about, but thinking about what is the interplay between the Americans with Disabilities Act and the Medicaid Act and how it affects your potential remedy is something that is complicated and if you get in that, um, in that situation, there are many people who can help you think that through.

But I definitely want to flag that.

And so I think we are pausing here for questions.  


ELIZABETH D. EDWARDS:  Yeah.  Geron, are the slides just not... 

M. GERON GADD:  Yeah, they are definitely stuck, and I will work on that.  I think it was a lapse in memory on my part for a part of it, but now they're struck [laughs].  I'll get there. 

ELIZABETH D. EDWARDS:  I did also want to flag, I think that Steimel is a really great case and has excellent language in it, excellent language in it, but there have been subsequent cases, including in the Seventh Circuit, including in Vaughn, where the plaintiff lost.

And to figure out and a way to keep Steimel in place and those decisions in that case in place and in the Vaughn case give the plaintiff there the remedy she sought, which in Vaughn, the issue was a woman who needed essentially 24 hours of nursing and she could not find nursing providers to actually provide the services.

And so was asking the state for reasonable accommodations to change the way the services were provided, including allowing her to self direct her services and she also suggested saying can I hire non nurses to perform nursing tasks if they've met, like, training requirements, and can I basically use my budget differently?

And the court found a way to say that her -- it was not clear that her request were reasonable and sent the case back down to the District Court, but still kept in place a lot of the language in Steimel.
And I encourage you to read that case and also to read Vaughn, because it does talk about, like, how far is the court really willing to go about having the state change its services?

I'll also flag that there's some language in Vaughn that I think does not actually go along with actual DOJ guidance, so just recognizing that, recognizing that to be true as well.

And if you compare it to DOJ guidance, it doesn't match up.

As somebody who was on that case, we briefed that, but the court didn't see it, didn't see it that way, at least.

But anyway, just flagging Vaughn and Steimel.

I did see a question in the chat about addressing aging caregivers on adult children with disabilities.
And there is a case out of Michigan that had a decision in the Sixth Circuit is a case to wash on that, because in that case the plaintiffs actually allege they cannot find providers and they are currently relying on older caregivers to provide those supports.

And that's part of what is putting them at risk of institutionalization and decreased community integration, because those caregivers physically can't continue to keep doing what they are doing.  And it's not a long term solution.

There is a provision in 1915 C waiver rules where a lot of services are provided through 1915 C waivers that says that natural supports should not be compelled.

But that's a more recent change from 2014 HCBS changes and I don't think a lot of states pay attention to that rule and it could be -- it is just a regulation, it's really not sort of been worked into the fabric of Olmstead quite yet.

But I would say watch the West School case.  

M. GERON GADD:  Also I think the Price decision as well, the case that I mentioned in New Hampshire is similar, similar allegations about the inability of adult children to get the requisite care and the inability to rely on family as part of that risk.

And I'm in the process of putting the cites in the chat.

But, um... 

ELIZABETH D. EDWARDS:  Another thing --

[Talking over one another]. 

ELIZABETH D. EDWARDS:  The other case to mention is also Murphy out of Minnesota which is the case challenging the lack of more independent living environments, and so that case is one to think about as well when you're looking at that issue.

And there's a very recent decision called HA by LA, and I will go with Ochel, I have no idea how to say the last name, but it's a case where they're arguing that the parents of adult children have their own sort of associational discrimination because of the way the state is relying upon them to provide services.

So it's a Michigan case to watch.  It's very early on and originally did not survive a motion to dismiss and just recently with an amended complaint and such, survived a motion to dismiss.

Um... so, we've sort of talked about practical challenges -- 

M. GERON GADD:  [Indiscernible]. 

ELIZABETH D. EDWARDS:  Did you say something, Geron?  

M. GERON GADD:  Oh, I'm sorry, I said emerging issues. 

ELIZABETH D. EDWARDS:  Right.  We talked about our practical challenges and we want to talk about some emerging issues as we sort of wrap up of what Geron and I were going to talk about and maybe have more of a discussion as a group.

So we all know that eventually the public health emergency that we're in will come to an end.  And with the end of the public health emergency -- or with the public health emergency, there have been a lot of, um, changes in HCBS systems and in policies in general to accommodate that emergency.

And there is the 1915 C waiver programs, through an amendment program, as well as states are doing other HCBS changes that affect services.

One of the big ones that a lot of states have done through appendix K amendments is to allow family members to be paid for support.

This is something they've always been able to do under 1915 C but a lot of states have not opted to do it.

With the end of the public health emergency, the appendix K amendments that allows paid family caregivers will come to an end no later than six months after the end of the public health emergency.

So, not only do we have sort of a lack of providers now, so direct care providers, but if when the public health emergency ends and those sort of changes to providers on who can provide services ends, will have probably a likely or an increase in -- well... a worsening situation with lack of providers.

Also in appendix Ks, there have been rate increases and other types of changes that have allowed or that have tried to boost up the availability of direct support providers.

There's just also significant changes in the policies around different services.  So who can provide services, the provision of remote assessments and sort of how often case managers are checking in on things.

At the end of the public health emergency will bring about quite a few changes in the provision of home and community based services.

One thing to note is that there is the American Rescue Plan Act, home and community based services boost that all states took, which is basically they have a plan of spending additional money, and during that timeframe, states are not allowed to change their various parts of their HCBS services.  But they are allowing to end the public health emergency changes, so just something to note there.

So there will be sort of two changes happening with home and community services that can put people at risk for institutionalization.

Another thing we wanted to flag was the limited provider capacity, that's an ongoing issue.  It will be difficult and we're going to see how that plays out in the courts, but it's a tricky issue and I encourage you all, if you want to talk about it, to reach out, because we certainly have ideas about it.

There's also service limitations.  We've always seen service limitations be problems and can sometimes be the part of a litmus of the Olmstead case and there are always problems with limits and budgets and assessment tools and there are a couple of cases very specific to the use of budgets and assessment tools that we can point you to.

Olmstead cases as well as due process on Medicaid usage and this has come up in the chat, but this is an emerging issue and we've seen this in forensic settings and jail and similar issues and emerging issues.
So we wanted to move to more of a discussion and talking about different questions people have, practical issues.

Geron is just coming off of trial, so she has things very much in her head about what it looks like, you know, down the road in a case.

And I've also taken an Olmstead case to trial as well.

So let's sort of open up and look at the chat.

And also please feel free to unmute yourself; I think we have that capability.  

KENNEDY:  Yes, anybody can unmute.  

M. GERON GADD:  Can I just underscore really quickly that we're all really excited about the prospect of being able to expand and develop the reach of Olmstead, and particularly I think on behalf of people with mental illness where we're trying I think as a community and as advocates to really think through, you know, if you have a crappy community system that is resulting in people having elevated rates of law enforcement interactions and getting at that issue, um, I just want to express a bit of concern about how far we can push it without sort of incremental development.  I'm not saying it doesn't work and I'm certainly not trying to discourage anyone.

But just for those who aren't as familiar, um, who aren't as familiar with that area, like, it really does put a lot of weight on the Olmstead that is really complicated.

And so I would just say, like, if it is one sort of one to reach out, if you haven't done it before, sort of reach out and "phone a friend" just to kind of talk through the likely hostile responses you're likely to get both from courts and from the state, 'cause it is certainly an uphill battle.  

ELIZABETH D. EDWARDS:  So, one other thing I wanted to flag before we get to questions as well is, um... that one just flew out of my head... hmm... we'll have to come back to that [laughs].

I don't know why that just escaped my brain!

So Ann asked about interested in any Olmstead claims brought under 504 against federal agencies, and she asks....

So I think I flagged this previously, but there has been a case where the provider sued CMS over an approval of a 1915 C and the court dismissed that finding the state wasn't a necessary party.

I think it's an interesting approach to -- I think that would use less of an Olmstead theory and more of, kind of, an Administrative Procedure Act theories, but they did mention Olmstead in that one.

I'm trying to think of other cases where it was really directly on 504 against the federal agency.  I'll put that case citation in the chat as well.

Geron, are you thinking of anything for federal?  

M. GERON GADD:  I'm sorry, I was responding quickly to Jennifer's question, when you say federal, it's two words, I apologize.  

ELIZABETH D. EDWARDS:  So I remembered what I was going to say, so while you think, I'll talk about the other issue I wanted to flag.

So I wanted to talk a little bit about what we've learned, at NHeLP we've been doing some Medicaid questions and out of the Seventh Circuit and there's a District Court case that's similar, but we want to make sure that the states meet to provide for children's services, to say that states are not doing what they need to do to arrange for nursing services.

And it's sort of a, you know, the state complains about lack of providers, that type of thing, and in one of those cases in the Seventh Circuit in a case called Olby versus Norwood, the court expressed real hesitation when it came down taking services away from one person to give them to another, they thought that was sort of the limit [chuckles].

And so just flagging it as a lack of providers analysis issue.

That doesn't mean the state is not still responsible for doing other things to ensure that people's needs are met and providers are available, but I just want to flag it as an issue.

And I know also people are thinking about whether or not rates solve it.  I think there's a lot of questions about, you know, what's the courts' rule in rate setting and making sure states pay for rates.  I think those are all very open questions.

I did want to touch base on Jennifer's question about, um, helpful tips for settlement negotiations in Olmstead cases and lessons learned.

And Geron, did you want to talk about the ones that you mentioned in your chat?  

M. GERON GADD:  Um... I just was gonna say, the two questions that I have address kind of briefly in the chat.

Number one, the question was do I have tips for ways that, you know, or terms, etc., that I sort of begin with.
And I sort of have to -- I've done this twice now, both -- in both instances with the Center For Public Representation and I would be super remiss if I didn't say if you're thinking about doing this, also talk to Steve Schwartz at the Center For Public Representation, he has been very good at this and has -- I've learned a lot from him in terms of negotiation and have some pretty stringent thoughts on this.

When I have done it, it looks more like structured negotiations, and that's sort of a term of art that an attorney out in California has pioneered this and I would consider speaking with her.

A lot of what I'm saying is derivative of what I've learned from others [chuckles] and I want you to know there are much smarter people out there to pick their brain as well --

>> Can you put that name in the chat?  

M. GERON GADD:  Of course, absolutely, I'll do so.

What I will say, though, as a general matter, is to answer in specific terms, no.

Approaches that have enabled us to get through those discussions and try to get through the hump without having to file, I think part of it has been focusing at the outset on what needs to be done and what is wrong and getting to an agreement with the public entity on how and what services are needed, and then talking about some of the thornier issues of, um, the cost of implementation, if necessary.

Whether, for example, the failure of an appropriation blows up the deal, how the agreement is subject to enforcement.

Um... I think, for two reasons, number one, that's ultimately really what it is about.  And if you can't get to an agreement on what needs to be done, some of the other absolutely vital bells and whistles, so I don't call them that in any way to diminish them, but to get to a deal, and it also gives you an opportunity to build relationships.

I think for those of us who do this, you know, for a living, but because we're passionate about the issues, I think it helps public entities to sort of realize that what we're really looking for is what is in the best interest of the client, which for a serving agency is sort of what is their bread and butter too.
And it gives you an ability to forge relationships that kind of carry you through the thornier parts of the negotiation.

And I would be happy to discuss this sort of in detail, because there is a lot that I have learned from this process.

But would say that as a hopefully helpful preliminary answer to the question.

And the other issue was have I seen, um, have I seen the failure to provide effective communication in Olmstead context?

I have individually represented individuals who were either Deaf or hard of hearing who were unable to be released either, for example, who were hospitalized, who were unable to be stepped down to group homes or other community settings because of their need for either communication devices or effective communication by providers.

For example, you know, how do you get to a group home if someone is Deaf or hard of hearing, how do you do that?

So it has not been a part of what I have actually pled, but I do think it is certainly, um, falls within the scope of what we're talking about, how you would actually plead it I think is a little bit trickier.

And it's also a related service.

But I'm happy to discuss that, you know, in further detail as well.  

ELIZABETH D. EDWARDS:  So I just wanted to find that the ASL issue was actually part of the issues in Clinton L. in Voss and the plaintiff communicated in sign language and one of the claims was that essentially the state or in this instance the managed care entity was putting the plaintiff at greater risk of institutionalization because the providers that were placing him with did not have sufficient language skills to communicate with him.

Ultimately in that case, the judge did buy that the provider had insufficient language skills for him, partially because the experts for the defendants convinced the judge that the plaintiff's language skills were not very high.

And so the minimal language ASL that the staff had weren't communicating sufficiently with him and became very much a fact specific issue.

There is another case that was actually more successful on that, but it becomes very fact specific about how much is enough in an effective communication whether or not it will be part of the risk of institutionalization.

On the, um, successful settlement front, I would say that one of the things we found to be more successful, and I think this is maybe not... it's fairly obvious, but making sure part of the settlement is a change in regulation or policy that we have a hand in writing and able to publish and get out there, so the state is sort of making a policy change in writing, that it then has to follow that we have a hand in.

And then also usually if they have to change that, sometimes they have to go through rulemaking or otherwise, and it's easier to kind of both track it and make sure that they are not changing it arbitrarily.

So that's sort of more of a settlement thing.

And we've been able to make some long lasting changes through sort of policy guidance and issues, that are issues subsequent to a settlement.

I think otherwise it's milestones and enforceability, which I know states are very hesitant to do.  But that's sort of one of the major things.

And I think, you know, as with any settlement, you know, the reference to that book is very relevant [chuckles], as well as just making sure that you know what is possible for the state to change and where their sort of tipping points are where it's going to be very difficult and trying to make sure the remedy is, you know, tied to what is likely possible.

Let's see what else is in here... 


ELIZABETH D. EDWARDS:  Okay.  Um... did I miss anything else?  


ELIZABETH D. EDWARDS:  One of the things I think we didn't talk about in depth that I wanted to mention, since we have time, is there is a case out of the Sixth Circuit that people should be aware of called Carpenter Barker Versus the Department of Medicaid, where in that case the Sixth Circuit differentiated an Olmstead case, like hours of needs, how many hours a person needed versus some systemic policy issue.
And in that case they found that the person did not have a viable Olmstead claim because there was an individual assessment of need that the state and the individual disagreed about and there wasn't enough there for the court to say this is viable.

That's kind of not a great summary of the case, but to know this is a distinction made of the Sixth Circuit of policy change versus individual circumstances.

The West School case out of Michigan had a Sixth Circuit decision and talks about that Carpenter Barker decision but to flag it so people are aware of that there is at least a Sixth Circuit differentiation between those two issues.  


M. GERON GADD:  I'm trying to go through the chat and see.  Elizabeth, if you're looking at the chat, I'll scroll through to make sure we don't have any hands up.  

ELIZABETH D. EDWARDS:  Yeah, the question about Olmstead and integration percentages and assuming you're referring to the agency putting limits on how many people with disabilities can live in a building, can we elaborate on that, I don't think I talked about that [laughs].  

M. GERON GADD:  I think it went to the extent it was talking about integration of percentages, it was talking about just the Olmstead plan and planning for, making sure that all relevant populations were included in the Olmstead planning, and then in the argument about fundamental alteration about the determination of resources.

I know the DAI case v. Patterson, it's a complicated case with a bunch of long decisions [chuckles], I'm happy to discuss it in greater detail.

But that one was it was institutionalization in a community, because essentially what you had was a massive New York City apartment building that had a lot of people with mental illness who had been transferred from other settings.  That's the only other one I can think of in terms of percentages.

But if you could remind us maybe what we said to make us think about that [laughs] 

[Talking over one another]. 

ELIZABETH D. EDWARDS:  Yeah, there is a question, it comes up in the Murphy case, which is about independent living, but I think it's also, you know, so much about Olmstead and Medicaid is intertwined, because Medicaid is the primary source of services to keep people in the community.

With the home and community services rule changes from 2014 that has a heavier emphasis on the full array of settings, including independent living settings, to more, like, larger group home settings, but also ensuring that all of those settings are community based environments.

There has been a greater focus on what does it really mean to live in the community?  And that actually was an issue that came up in Clinton L., which is before the case came out, what does it mean to live in the community and what is it about percentages or what is it about the person's experiences?

I think we all have sort of had clients where they may live in sort of an integrated apartment complex, but everybody with disabilities is, you know, over in one part or, you know, they are otherwise segregated.

So it can be somewhat dependent on the actual circumstances.

I don't think it's ever as easy as percentages and also providing, um, additional information.

And on the question of whether or not you have to exhaust administrative remedies, I would say no [laughs].That's not generally required for an ADA case.

There's been a few rare kind of "off" decisions where the judge has sort of indicated a preference for administrative exhaustion, but in general, you don't have to exhaust for an ADA claim.

And there's been some pretty good stuff on that in the ADA context to makes that pretty clear.


M. GERON GADD:  I think we have answered most of them, um....

I have occasionally -- sorry, I'm just reading Sharon's follow up [laughs].

Have you found HHS complaints helpful?  So, just to sort of explain and qualify my answer, I, before coming to D.C. in Chapel Hill, I was at the Alabama disability advocacy program, and I filed a couple of complaints that were individual in nature and were very useful in getting to meaningful discussion with public entities,
I have seen them be a little bit more success -- and they were very useful there, they didn't lead to a resolution, but in many of those context, what was really needed was for people to put their egos aside and get to business [laughs].

And we were very effective in doing that.

But I've also seen complaints, like systemic complaints, be filled with HHS that were -- where dependency was helpful, but there was a period of time where HHS was more enactive during the prior Administration.
I think that is less true now and it would be either here or what Elizabeth would advise on that.

But it is something I would give serious consideration for a variety of reasons.

If I was certain, however, that I was going to have to file, there's nothing that would happen that would avert a filing for reasons, I'm happy to discuss offline.  Elizabeth may disagree.

But that's my sort of answer.  

ELIZABETH D. EDWARDS:  Yeah, I mean, I found both HHS complaints and DOJ complaints to be helpful, um, you know, it's not always a guarantee they will take it out, but they can be quite helpful in resolving a problem.

I think we're pretty much almost at time, because this ends at 3:50.

I wanted to make sure…

M. GERON GADD:  Oh, let me -- keep talking, sorry, I wanted to advance the slide so I can get them our contact information. 


So, as Geron said, we are always, always, always happy to talk about Olmstead.  And there's other people in our office at NHeLP that love to talk about Olmstead, not just us, and we're happy to share our experiences and our response on where the law is and the situations and cases we've had in the past.

So feel free to reach out to us about anything you want to talk about.  We're happy to chat.

If there's a Medicaid issue you want to talk about, we're happy to share with what we know.

I know this was a lot of information, but we wanted to kind of give you the landscape of the different things that Geron and I have been thinking about and others in our office have been thinking about in terms of how do we think about Olmstead litigation, what are the concerns we have, what is our thinking process, and, you know, how do you deal with them as they mature over the source of a case.

I think Olmstead actions, just like any other case, evolve and they can get, uh... go to a place you didn't know they were going to.

And you can totally settle a case and find out the state has gone back to where it was, you know, five years later, so don't be frustrated if you don't get the systemic change you were really hoping for.

But there are always interesting cases.  All of them, I think.

So, like I said, if you wanted to reach out, please feel free.  Geron, did you have anything else to add?  

M. GERON GADD:  Thanks for your time and listening to us as we're sort of [chuckles] working our way through sharing things with you.

And I just would underscore what Elizabeth has said [Ping sound], please reach out, we would love to -- it's really complicated stuff.  Don't be embarrassed.

I sort of am at NHeLP because I used to call Elizabeth with my hair on fire and sort of got into it and did more.

And I think we all have an interest in sort of helping one another.  These things are hard.  They just -- they're hard and there's a lot to think about.  So please just don't be shy about reaching out, even if all you need is sort of a sounding board, we are here --  we are eager to -- I am certainly eager to return the favor, you know, in doing so.

And thank you for all the work that you all are doing.  The progress that we are making on behalf of Disability Rights requirements a community to do it and I'm super proud to be a part of it with you all.  

ELIZABETH D. EDWARDS:  Yes.  Thank you all.  We'll stay around I guess for a few minutes if anyone wants to stick around.