The Department of Justice and the ADA's Integration Mandate

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. 

JULIA GRAFF: Can everyone hear us ok? We are just going to go ahead and get started.

BETH KURTZ:  Hey everyone, welcome! So thanks for joining us this morning. Julia and I work at the Department of Justice and we're so happy to be here and to use this opportunity to talk a little bit about some of our work over the past year and some of our work in general. My name is Beth Kurtz. I'm a Trial Attorney in the Civil Rights Division at Department of Justice working in the Special Litigation Section. I work specifically on enforcing the rights of people with disabilities and mostly enforcing the integration mandate. The section also enforces the rights of individuals interacting with the police, with correctional facilities with juvenile justice facilities. My pronouns are she/her. I have red hair wearing brown glasses, brown jacket. Do you want to introduce yourself?

JULIA GRAFF: I'm Julia Graff.  Like Beth, with brown hair. I'm her counterpart in the Disability Rights Section. There's a history of as to why but we do our own enforcement work in the Civil Rights Division primary out of the Special Litigation and Disability Rights Sections with some also work from the educational opportunities section.

BETH KURTZ: We're using a PowerPoint today. It is mostly text. We'll say the text out loud. There's one photo, which we'll describe.   
We have also made the PowerPoint available online for folks who want to be able to access it later, in case that helps you with any notes you may want to take.

So with that, we're going to dive in. So, perfect. Just an overview of where we're going to go in the next hour. We're going to do a quick introduction to Olmstead Enforcement work, we're going to talk a little bit about how we approach Olmstead Enforcement work. We're going to highlight some of the major investigations that we've done in the past year.  And those have been primary focused on children's behavioral health.  And then, we'll talk a little bit about everything else that is going on and how you can work with us.

JULIA GRAFF: So I don't know what kind of what background and familiarity everyone in the audience has with the Integration Mandate and Olmstead Enforcement at large, so we'll go very briefly with a little background and apologies to folks for whom this is common knowledge. So you know, Title II is the part of the ADA that applies to state and local governments and that is where our community integration work is housed because disability service systems are run by state and local governments so that's legal vehicle that we use and the DOJ promulgated. 

This is the Title II up on the screen, no qualified individual with a disability because of the disability shall be precluded from participation in for the benefits of the services programs or activities allows the Attorney General to promulgate regulations which -- next slide -- includes the Integration Mandate.  So this is our regulation which despite some of the Doom's Day and hand ringing we just emerged from this is still law. This is our Reg, failing to administer programs and services in the most integrated appropriate is integration. Next slide. The Integration Mandate is not without limitation though.  Spelled out in the regulation, public entities do not have to make modifications that would fundamentally alter their service system which is a very fact-based analysis. The burden is on the public entity to show that a suggested modification would be unreasonable because it would become -- it would work a fundamental alter ration. Next slide. This is the slide with our sole photo.  This is a photograph many of you will recognize. This is Lois Curtis, one of the two Plaintiffs in the Olmstead LC.  

This is a photo of her meeting with President Obama, I believe, in the Oval Office.  This case, very briefly, was brought by two women in a psychiatric hospital who wanted to leave the hospital and reside in the community and the Supreme Court issued this decision in 1999.
Next slide.  This slide contains a quote from the Supreme Court decision about segregation being so pernicious because it perpetuates the stereotypes of people with disabilities who are institutionalized who are not worthy or sort of capable of community life. Next slide. So the Olmstead decision, this is the last background slide, laid out a 3-part test for the Plaintiff's Prima Facia or case in chief. The public entities need to serve people with disabilities the most integrated setting appropriate.   

So the first prong is to establish that community-based services are appropriate for the individual. The second is that the individual does not oppose which kind of a negative framework you might say prefer in a better light. Really do not oppose. We can talk about it as almost establishing or arguably should establish kind of a default proposition that people can be and should be served in the community.
And then, that serving them in the community can be reasonably accommodated, taking into account the needs of other individuals with disabilities whom the public entity serves. Next slide. So the Department's Olmstead Enforcement work spans a variety of sub-populations of people with various disabilities and in various kinds of institutionalized settings as you'll see as we discuss our ongoing work.

When we do this work, you know, we try to keep in mind and center several important principles. First, we try to seek relief that will create viable community-based alternatives to institutionalization. Things are not just on paper or in theory but that actually exists to offer people meaningful alternatives to a segregated setting. Second, we seek to ensure that people have opportunities for integration and in all domains of life not just what kind of roof is over their heads and what it looks like where they sleep at night. But that they have opportunities for integration and volunteerism or employment or education and recreation during the day.

Finally, we try to engage a range of stakeholders. People with disabilities, families, caregivers advocates, providers and hold that as really important to ensuring to understand what is going on in the jurisdictions we're investigating and monitoring compliance with settlement agreements and consent decrees, so we understand what is going on. We are involved with our public entity partners in crafting relief that is responsive to the on the ground experience of people who find themselves institutionalized or risk of institutionalization. Next slide.

BETH KURTZ: All right.  So with that background established, we're going jump in to stuff we did pretty much since this conversation happened last year until now. So, we're doing kind of a March to March year.  The first thing that we're really excited to highlight is some of our Olmstead Enforcement matters involving children's behavioral health systems. This slide just gives a little bit of background what we're talking about when we talk about children's mental and behavioral health. It's a big topic right now. Those who read a lot of national news publications will not be surprised to hear that I think we are at a crisis and a breaking point when it comes to our systems designed to serve children with mental and behavioral health conditions or disabilities.

That is true on all levels and that is involving a lot of important coordination work both on the part of Federal government on the part of state governments on the part of private organizations, providers and others. So, you know, we're seeing huge increases in the use of hospitals both emergency departments and psychiatric hospitalizations for kids. Clinical indications are also going up so any measures of anxiety, depression, suicidal ideations and behavioral problems all seem to be coming together. There are a lot of reasons for that, pandemic impacts being among them are social media and really kind of the effects often of poverty and complex trauma for kids.   
So the next bullet is the impact of trauma. It is a really important consideration when we talk about the children's behavioral health system because the children who often fair the worse or struggle the most to navigate the system maybe those who have experienced trauma, whether that is related to family instability, abuse and neglect, violence, community violence, the sort of complex trauma factors associated with living in poverty, certainly these types of issues effect children in all types of families and all types of socioeconomic backgrounds.

I want to be clear about that. But when we see children who find themselves involved in multiple public systems these problems can get more challenging, right?  So we have a number of public child-serving systems all of which are subject to Title II of the ADA. You might have public schools. You will have a health care system, a Medicaid program, child welfare or foster care system which can often play a pretty big role in the institutionalization of kids as can the juvenile justice system. One of the things that is exciting about working with the population, this population of children is that there are a lot of entities that can theoretically catch them and provide different kinds of services. The challenge on the flip side there's a lot of different entities at the table that actually might miss them or fail to provide service or at least need to coordinate among those entities in order to sort of change the way that things work. When there are multiple systems at the table, it gives the opportunity for some finger pointing.  And so I think we see that a little bit in this world.

So to talk a little bit about how this all goes down in the Olmstead context, we find kids with behavioral health conditions in a variety of segregated settings. So those are settings sort of as Julia just talked a bit about in giving the Olmstead background where kids may be separated from their families and communities. They live among only disabled children so they don't have the opportunity to interact with non-disabled folks.  They might not have the opportunity to engage in certain hallmarks of normalcy, going to school, playing sports, engaging in extra-curricular activities.  Just being a full participant in their family life. So these segregated settings often go by different names. It sort of depends. So often we see on the hospital side psychiatric hospitalizations of kids but we also see these non-hospital settings that anyone who is -- does any kind of foster care or juvenile justice work may be familiar with often called residential treatment centers.  

Medicaid allows for psychiatric residential treatment facilities. There are a few other names that those sort of longer term non-hospital settings may go by.  So I'm going to jump in. We had the opportunity to finish three investigations this year, really trying to take on some challenges facing this population. So the first one I'll talk about is our letter of findings in Maine, with regard to the Maine statewide system.
In June, 2022, Maine unnecessarily segregates children with mental health or disabilities in treatment facilities and in a state-run detention facility. There are a lot of inadequacies that we uncovered in Maine in the community-based system that we argue play a role here whether that is under resourced crisis services.  There are wait lists for community based services, therapeutic foster care placements those are home-like placements often with nonprofessionals with just individuals, lay people, who are trained in a therapeutic approach.  And all of those gaps lead to kids being unnecessarily institutionalized.  

As always with a lot of our reports and letters of findings, we suggest that pursuant to the Olmstead case and the ADA Integration Mandate Maine can reasonably modify its system by ensuring access to the services it purports to provide addressing the wait list and improving some of the deficiencies that we identified in the system. Just to highlight a quote from our report -- families we interviewed, said, "After reaching the crisis hot line, staff told them there was no available service in the area and suggested taking children to the emergency room or calling law enforcement." So not only having a theoretical mobile crisis service, but having an actual mobile crisis service can serve that important diversion function will be an important reasonable modification for Maine.

Charting next to Nevada now because we're talking about these things together and because this our work in children's behavioral health is coordinated you will find some fairly similar findings in Nevada though it is a very different state than Maine. The way that the challenges facing children with behavioral health disabilities show up in Nevada can be a little bit different but again, we concluded Nevada is violating the ADA by failing to ensure access to sufficient community-based services to prevent the unnecessary institutionalization of children in hospitals and in residential treatment facilities. I wanted to also emphasize and this is true with respect to the Maine findings too.  These kids are not actually staying within the state when they are unnecessarily institutionalized. A lot of them, or I would say, a too high proportion of them are being sent to other states but funded by their home state's Medicaid program.

And I think things like that really exacerbate effects of the segregation as we have discussed. Imagine the sort of separation from your home, family, community, the school you've always gone to or, you know, hallmarks of an integrated life like that. Imagine how difficult it could be to reintegrate after a period of treatment in one of these settings. Again, Nevada can reasonably modify its service system by ensuring access to community-based services that includes you know making sure that it is provider network adequate making sure some of the services like mobile crisis, like intensive care coordination that it provides are, in fact, available to all of the children who need it.
And then, you know, the state needs to do a little bit more, we'll call it, diversion and transition work.  So systems in place to prevent children from being institutionalized unnecessarily and then systems in place to support those children and any children who are institutionalized in transitioning back to their communities.

And we have a quote here from our letter of findings "A parent whose 14 year old daughter has been institutionalized 47 times including a residential treatment facilities in and out-of-state, hospitals and juvenile detention centers told us that every day away from her daughter hurts."  Several parents expressed concern that being away from home at a residential treatment facility is making things worse and even harming their children. One parent worried that her adopted son feels abandoned. "We are supposed to be a forever family" so, some heart breaking and really effecting messages we heard from the families who are directly experiencing this system and our hope is this work will try to create some better option. So then, third, but not least, are findings in Alaska. Having now we talked about our Maine and Nevada findings the Alaska findings should look a bit tomorrow to you. There are -- well, every state is different. There is often a menu of the kinds of things that can serve children with intensive behavioral health needs, intensive care coordination, family-like placements, support in-home, intensive in-home services to support families the and mobile crisis and systems in place to make sure that kids can actually access those children -- those services, excuse me.

In Alaska, as you might imagine, the challenges are significant because of the geography of the state because there are kids and families who are living in often rural and under-resourced communities. We spoke a little bit in our letter about the impact on the indigenous community in Alaska and, you know, it is again those harms of being separated from your family, can show up differently for different kids from different types of communities and it is very hard. It is very hard when you're from Alaska and you are sent to Missouri which is straight in the middle of the continental United States. You can imagine how difficult it might be for your family to come visit. And so, similarly, you know, Alaska has a menu of children's services by reasonably modifying their system to ensure those services are available, are responsive, are coordinated and sort of managed by the state so the state can ensure who is getting access to them it is our hope that through reasonable modifications of the service system like that, that Alaska can make some significant improvements to prevent the unnecessary institutionalization of children.  And then, here's our Alaska quote.

"Children with behavioral health disabilities remain in crisis longer, wait for long periods in a setting not designed to help them, do not receive adequate care and are discharged with no effective plan for long-term improvement because of the state's fragmented system of care."  The fragmentation and finger-pointing I was talking about earlier, I think really shows up for these kids. And, you know, I will say we did not do any investigation into the conditions of these residential treatment facilities for a few reasons it is sort of beyond the scope of this particular work but they are often very, very challenging places to be I will say that. So certainly you can imagine how being in an environment that may not feel particularly therapeutic or particularly applicable to that child's life at a time when that child might be out and back in the community, can pose some extra challenges.

So that is my run down of our really exciting children's behavioral health work. It is a big passion of mine. I'm happy to talk to folks about it any time.  And so before we move on, you know, we are talking about some of our work that is at various stages, I wanted to highlight some of our open investigations.  These three were investigations that have resulted in findings. These are investigations where Department of Justice has made no findings at this time, so these are open investigations without any conclusions. It is just a sample of our work. You know, some of our work we can talk about publicly.  Some other aspects of our work, we're not quite ready to talk about publicly I wanted to shout out a couple of these investigations because they are interesting and hopefully promising though we do not know what we will find.   
In Missouri, we're taking a statewide look at the way that people with disabilities with mental health related disabilities adults with serious mental illness wind up some skilled nursing facilities.  

A particularly interesting aspect of that investigation is that we are taking a look at the guardianship system to assess whether the way guardianship is used in Missouri, may impact the path to a skilled nursing facility or effect the path out of the skilled nursing facility. So we're looking forward to diving in on that. Then, I also wanted to highlight our Oklahoma City investigation.  It does bring together a few areas of our enforcement authority so as I mentioned earlier the Civil Rights Division does do investigations into civil rights violations on the part of state and law enforcement entities.

So in Oklahoma, we're doing a little bit of both because we know that for individuals with serious mental illness, they are particularly likely to interact with the police choices that the jurisdiction is making about how to invest in versus other services other behavioral health services in the Medicaid system, often important parts of the story in the ways that often vulnerable people interact with public systems.  Again we have made no conclusions in Oklahoma.  But, that investigation is ongoing.

JULIA GRAFF: Hey, questions.

AUDIENCE MEMBER: To clarify the first 3 you spoke about, were all letter of findings?  

BETH KURTZ:  Hi, they were not resolutions you made the findings what can you tell us publicly --

JULIA GRAFF: Kevin, you're jumping the gun --

AUDIENCE MEMBER:  Because you're going to talk about that later?

JULIA GRAFF: Right now.   You can answer --

BETH KURTZ: Julia will go there, so basically when we issue a conclusion that the DOJ has reasonable cause to belief entity is violating the ADA then we do try to do something about it. And that often leads to a period of negotiations, to try to enter an agreement.   So, um, yeah.   Those are letters of findings that are fairly recent in the past months.  And we are all of those are kind of in the hopper for things we're hoping to achieve changes to remedy the violations we've identified.

JULIA GRAFF: As you can see on this slide [laughter]

BETH KURTZ: Perfect.

JULIA GRAFF: Kevin is my boss in the Disabilities Rights Section he actually knows the answer to this question. These the states listed are public entities I mean Alameda is a county. They represent places where they earlier issued findings maybe from the last year's conference or maybe the year before. This occupies a fair bit of our time. Our statute requires us to seek voluntary resolution where possible.  And even if it didn't I mean I think it's a good practice to work in partnership and create some co-ownership over the remedial structure that will be put in place to resolve findings.

I'll not go into all of these as you can read here, you'll see some of the cases that Beth just talked about Alaska, Maine, Nevada we're also still working on associated resolution in Alameda County and Colorado and Iowa.   So those are cases that if you attended the presentation last year's conference you may remember and, you know, we can't really talk in detail about what is going on in these but we're working hard to bring those to a close or really it is a new phase. Kevin, did that answer your question?  

AUDIENCE MEMBER: I believe so. Thank you.

JULIA GRAFF: Thank you for the opportunity [laughter] ok. So now we're going to talk a little bit about some litigation developments.  So sometimes this happens when we are unable to come to an negotiated resolution. We may file a complaint to initiated a judicial proceedings. Next slide. So the first case I wanted to talk you about is one I'm certain colleagues of mine have discussed in this space previously is United States v. Florida. This case, recently celebrated its tenth birthday some of our Olmstead cases do. So this is a case that we filed in 2013 alleging the unnecessary segregation of children with complex medical conditions in nursing facilities in Florida.
After a few years of litigation the case has a long complicated history I'll try to be brief.   It is kind of interesting though.

After surviving a motion to dismiss on the eve of trial in 2016, a newly appointed judge that took over the matter when the first one got elevated to the 11th Circuit, just dismissed it on his own initiative, thought it would be a good idea to dismiss this case and ruled that the Attorney General does not have standing to enforce Title II at large, not with respect to the Integration Mandate. So United States appealed that.  In 2019, the 11th Circuit agreed with the Attorney General that he is a person you know it's all statutory interpretation I won't get into because it is a bit dizzying, the Attorney General is an individual who has the ability to enforce Title II. Florida petitioned to review from the entire circuit appeal. They are heard by a 3 judge panel. If you loose with the 3 judges you drew at random you can try your luck with the whole it's called the whole bench to try your luck with the larger the whole group of judges.  That was denied.  It was sent back down and what happened?  

Florida tried to petition to stay the proceedings while it petitioned for Supreme Court review.  Eventually the Supreme Court said, no thank you.  We'll pass this now. We're barreling toward a May 8th bench day at long last. I think we're ready for the next slide here. So the Supreme Court petitioned was denied in October so we're on a pretty fast docket to May. The magistrate judge recently recommended denying the state's motion to dismiss. There have been cross-motions for summary judgment. I just wanted to highlight a few things about Florida's summary judgment motion they argued that is sort of a remix of its standing argument or that the United States doesn't have authority to sue.   They said, ok, United States has the authority to sue to enforce Title II but actually we think it's only about individuals who have actually filed complaints with the Department of Justice.

So the Department of Justice cannot go in and sort of you know get its foot in the door and look at everyone who might be discriminated against.  They really need to ignore any other violations they may find this is like OSHA inspector this is me riffing this is like a OSHA inspector comes into the factory they're not allowed to look at the blood on the floor over here, that's the argument. They also made some arguments about the appropriateness of community-based services for these kids saying, well, you know the United States is being very Ivory Tower about this, they have not examined these -- some of these kids' actual homes are not stable, cleanly and available to host a private duty nurse.  And so, you know, because the kids, the individuals the kid's individual apartments may not be appropriate, the United States has not established appropriateness and then there's no evidence the state argued that these suggested reasonable modifications will work because Florida contracts as many, most, maybe all states do, with third party entities to administer their system.

We don't know that raising reimbursement rates for Medicaid private duty nurses will lead more people to accept the jobs to work with the kids in their homes helping them stay with their families. We also moved for summary judgment, arguing the opposite. In, with respect to the State's opposition motion, sorry, summary judgment motion we said no we do not need to close our eyes to other violations we find when we're investigating properly filed complaints. Appropriateness does not require a determination of whether a specific appropriate placement actually exists and in fact we say in our opposition brief this is the whole point of Olmstead. The whole reason people are unnecessarily institutionalized is because they have nowhere to go. So you can't kind of use that circular argument then we argue which is a fairly well-established principle the public entities are ultimately responsible for ensuring a compliance system even if they contract out with third party entities next slide.

I just wanted to leave you with this quote, which makes me tear up every time -- maybe I won't right now this from a parent that we interviewed in the course of our trial prep.  Who said -- "His birthday is coming.  I will not see him.  I am going to send him something but it's terrible.  I also worry about the example it sets for my other kids too to know they have a brother somewhere else he is not being celebrated in the same way or nurtured in the same way as them." Next slide.  Ok.  This next case is also a case behalf of children.   So that is kind of a big theme.   This is United States versus Georgia, we call this the GNETS it stands for the Georgia network -- I may not get it educational therapeutic schools it is right there. Wasn't that smart of us! This is a complaint we filed our colleagues in the educational opportunities section filed, it's an application of the Integration Mandate to a school system.  

Georgia has a completely segregated school system for children with behavioral health needs.  A lot of these schools are housed in the same structures that used to be racially segregated schools. And in 2020 the Court denied the motion to dismiss finding that the DOJ has standing to sue under the Title II this is a theme you're seeing, discovery is ongoing, there's no trial date but presumably that will happen unless the parties come to a resolution. Do you want to do Mississippi?



BETH KURTZ: So sure, went to Mississippi in 2019, we were successful at establishing that the state violates the ADA for unnecessarily segregating adults with serious mental illness in psychiatric hospitals.

JULIA GRAFF: I want to interrupt. If you have not read the opinion, you should really go onto our web site read it, it is a really beautiful opinion.

BETH KURTZ: It is hopefully it will last!  And so the case is currently on appeal in the fifth circuit, so that was argued this past fall and we are awaiting a decision on that. In the meantime, there is a remedial order in place and there is an independent monitor and there are some remedy that's are under way but we are waiting for the resolution of this one on appeal. So just going to jump in a little bit to statements of interests.   So some of you from your own litigation or from your own work maybe familiar with this, this is statement of interest is sort of a special DOJ term for a type of Amicus brief we're able to file and privately file litigation.   

So we've had the opportunity to do that in a couple of interesting ways in the past year we're going to highlight a couple of them. So the Jeremiah M case, we talked on theme, we talked about our Alaska a little bit.   At the same time that our investigation was going on, there was a privately filed Civil Rights Action focused on the experiences of children in foster care that considered some of that you know, had Olmstead claim. The state filed a motion to dismiss just arguing in part there is the appropriateness for the community prong and their Defendants will often try to raise that the Defendant itself so the defendant's state has employed a treatment professional or other professional who is deemed the child appropriate or the individual appropriate for institutionalization and that happened here.

This is an interesting twist on it because these children are court-involved and I mean I should have mentioned Courts before when I talked about multiple parties at the table.  A lot of children, because of the nature of foster care proceedings and juvenile justice proceedings have judges making important decisions where they are living. And so we were able to say you know, oh, here is our next where we can talk a little bit about what we said I will say the state first also argued that Plaintiffs were currently in the community and that Olmstead doesn't require the state to achieve a certain level of services.  The state can make choices what services it offers. So, in our statement of interest, we said it now well established that Plaintiffs who are at serious risk of institutionalization may bring a case focused on that serious risk.   So in responding to the state's comments about children being in the community, Plaintiffs do not need to rely upon a state-employed treatment professional to determine community-based services are appropriate and that it is a reasonable, we're operating the world of reasonable modification here.   

It is always a reasonable modification for a state to have to actually make available services that it purports to offer and so that is still pending. I want to also talk a little bit about our filing in the Harrison matter.  So this was an individual case it was about someone who was on a wait list for a home and community based services waiver. You know, there was a mention at the opening Plenary about Defendants really going there with some new defenses.  And one that Texas put in its motion for summary judgment is that as many may know the ADA was amended in 2008 those amendments were primary focused on a definition of a qualified individual with disability. They were not focused on the Integration Mandate or anything about it. 

But the state said, well, 2008 is after 1999 which was the year Olmstead was decided they didn't say anything about the Integration Mandate they must have gotten rid of it or something it didn't work [laughter] and then we also talked about, you know, a cost cap is not an essential eligibility requirement, using regulatory language and that their motion talked about the cost cap and just claims that they could not reasonably modify the system and so we filed a statement of interest, rejecting the 2008 ADA Amendments Act saying that cost cap is, is not necessarily an essential eligibility requirement and then, articulating that what the Plaintiff seeks could in fact be a reasonable modification.   

So this one ended up getting mooted out but with a favorability order as part of resolving the matter and ultimately dismissing it, the Court did find that I think the, the Plaintiff's claims or some of the Plaintiff's claims would have survived and specifically rejected that 2008 ADA amendments argument.   But it ended up getting mooted out I think because of the individual ended up getting the services that she sought.
And then just highlighting Fitzmorris this is a class action out of New Hampshire and so this was actually a motion for class certification and so the Defendants had argued that there was not sufficient commonality that you know the Plaintiffs could not establish the Rule 23 criteria for a class.  And so we filed and said that you know the same relief would apply to the class and there were common questions of law facing the class.

JULIA GRAFF: This is a very complicated, this is the third in a trilogy of cases where we filed SOIs in state court matters that are related to our New York State Federal Olmstead case that we, we are co-counsel with Disability Advocates, Inc., our cases is called DAI. In New York this is the third and trilogy of cases brought by Trade Association, families organized to save the adult homes. This is an adult serious mental illness case. The challenge regulation here was not explicitly like part of the DAI settlement agreement but related to it, the regulation sort of restricts the Census or the number of adults with SMI that can be admitted to any one particular adult home at issue.

It was intended to prevent back filling with adult home beds with more individuals who have serious mental illness after the state issued a clinical advisory about them not being therapeutic settings, etc. there is no decision in this case. The second case however in this Trilogy is stayed pending appeal of the first case which had resulted in a really unfortunate lengthy decision where the state court judge explicitly finds to the contrary the Judges finding in the DAI matter, you know, which was a trial, multi-week trial, that resulted in a very lengthy opinion with very well supported facts and findings. He said, the adult homes are not institutions he said that because they are privately run Title II and Olmstead do not apply to them. He also ruled that Olmstead requires that integration on an individualized basis and there was no evidence that anyone was actually integrated into the community because of the regulation about back filling.

The Judge also found that the challenge regulations by -- or the challenge reg violates the Fair Housing Act because of it is facially discriminatory if you're going to be the 26th percent resident you can't live there. It doesn't further legitimate government interest there's no credible evidence that adult care homes are clinically inappropriate. Discrediting the expert witness testimony provided. This is going to be interesting to this audience, in part, the reasoning was based upon the fact these are waiver-funded settings. That is really in the weeds language for their funded by Federal C, Federal and State Medicaid dollars devoted to funding community-based settings someone who is deemed this community-based setting this must be, therefore, not institutional and then this is also interesting he said, also, less discriminatory alternatives exist in this regulation such as, providing information to give individuals a meaningful choice of alternative setting that would be an alternative that he thought would be less discriminatory.

A lot to think about and very troubling.  That case is, as I mentioned, on appeal we don't have a decision in this one yet, And I think we're overtime. So that was actually lengthy should we breeze through what is a really large part of our work?

BETH KURTZ: We'll breeze through this is the kind of stuff that matters it all matters.

JULIA GRAFF: Yeah. You can see by the number of states on this slide, you know, every one of these states we're either flying there regularly on talking on the phone to experts independent reviewers court monitors PAs and other advocates impacted individuals.   
This takes up a lot of our time you don't hear about it, it is not new and it is not new, right. But I will just say, so these are all the states up on screen.   The ones related to adults with SMI are Georgia, Louisiana, Mississippi, New Hampshire, New York and New Hampshire related to IDD in Georgia, individual matter in Maine, Rhode Island which is about adult day IDD services and Virginia we're monitoring an agreement in North Dakota about adults with physical disabilities in nursing homes and West Virginia an indication about children he is behavioral health again.  Next slide.

I was going to talk about a couple of our monitor cases have resulted in recent activity in New Hampshire and in North Carolina. I am going to kind of skip these to say in North Carolina, there's been partial compliance they need more time to comply with some of the other pieces but, exciting things I wanted to talk about that state is -- the through the technical assistance of the independent reviewer in that case especially a real alliance has been forged between the state Medicaid agency, Department of Health & Human Services and the state's Housing Finance Agency. So there's now a pretty solid partnership in that state that really recognizes the crucial link between housing finance and affordable accessible housing development leveraging these Federal and State tax credits and, community integration because people have to have a place to go.

And I'll breeze over this one too, except to say Yay sometimes these cases resolve and people do more or less what they're meant to do and then we can exit the case as we did here.  Yeah. This is a first of the kind case I should give a shout out to CPR and Disability Rights Oregon we intervened in their litigation, it was in litigation and now it complete.  Also, yay -- we did an overhaul finally of our web site.   Much work has gone into this only some of it from the lawyers most of it from our other staff in the Disability Rights Section. I think you'll find it a more accessible content wise and also hopefully, accessible to people with visual impairments who are trying to access the content and it is resulted in, so there's a new page specifically under feature topics on community integration if you like it I wrote it, if you don't, here's Beth you can talk to her.

Also resulted in sort of a reshuffling where things are.  So these are -- so yeah, these are the two web sites, and a section for disabilities rights and for special litigation.  That is where going forward our litigation documents will be, um, but -- there's an archive on where you can find, did we not mention -- did we not put that there exactly.   It is easy to remember.  That is where content from before -- hold on a second. Before 2006 to 2020 are at it says 1990-2020 in my notes from 2021 to the present to the present Department of Justice disability rights cases can you do a keyword search for Olmstead to bring up the Olmstead matters as the special lit matters are Special Litigation Section you can mess around with the litigation.

BETH KURTZ: Google it or -- email us and we'll send you any public documents that you are looking for you may not be able to find.

JULIA GRAFF: We have a few minutes for Beth to answer your questions.

BETH KURTZ: Or Julia to answer your questions. In a lot of the cases at least I was curious in the voluntary resolutions but I hear from service providers in states mainly the service providers is we would do this kind of work community-based the state wants us to they pay us so little for the very hard behaviorally challenged situations that we are not going to go, you know, it seems like it is a circle.

I was curious whether it doesn't matter what population we're really talking about I mean the lack of community placements is driving a lot of this that's been historically the case I'm wondering in your negotiations do you get the commitments of the states to increase the rates or to do things -- that is really seems like for those states that believe in this which many states do they want to do it. They don't really want to have institutionalized, they rather have community-based service providers want do it, but it is a money issue or a lot of it is I don't know about other states at least here it always has been.  I was curious, do you get into those weeds with them?

BETH KURTZ: That's a really good question.  I think like there's some significant challenges facing states and jurisdictions trying to stand up these services. Speaking about some of the agreements that we have in place, and, you can jump in if I am misspeaking, you know, a lot of those questions about how to actually braid funding from multiple sources to look at whether the rates are working to figure out the right Medicaid and/or State dollars structure to get the services off the ground. Those are often implementation questions. We don't want to bring a one-size fits all from DC we have the high expectations that the state will remedy the violations that we have identified.   

We want that state to be able to do it in a way that is consistent with what going on with their state and what will continue to happen after we're not there. We'll often have some requirements in our settlement agreements but that kind of goes to the compliance line we went fast other which is the real bread and butter of like, ok, we got to where the place where we articulated how the system will go, how do we do it. We're engaging with the experts talking to the states all the time, we're trying to put heads together all the time with the challenging finance or regulatory or policy or other legislative tough questions.

JULIA GRAFF: We have a pretty good bird's eye view of what has happened in states.  I recommend a service definition in this case or a rate setting methodology they used in this case I could dig that up and share with this other state or we have a good sense of what has been successful and what has not that we try to offer states in ours but with the recognition that some of that might be appropriate in one state, not in another. There has to be some state discretion and ownership over the strategies they use but the rate setting is a touchy one for sure.  Really important.

You mentioned guardianship earlier with the nursing homes. I was wonder what that issues what in North Carolina we've seen situations where multiple clients where they go into a hospital, then guardianship is enacted against them, they can't even show up because they're in the hospital.  And placed, you know, being found incompetent being moved into these segregated facilities. They don't even have counsel to continue the case.  I'm wondering if there's a systemic way you're looking at it, how is that playing a role?

BETH KURTZ: That's a good question.  Because it is an open investigation we're trying to figure out what if anything the guardianship issue is, to try to dig into the way that folks in Missouri which is the I highlighted, find themselves the role of the guardianship might play as they find themselves on a potential path of nursing facilities or ways in which it will may prevent transition and discharge back to the community.
So without having reached conclusions yet, I can't articulate an ADA theory or say a ton more.  I think we are pretty open. The prominent guardian, I will say is something we have noticed in that matter.  And it might be things that are similar to what you're describing but how that fits into the puzzle that we're seeing in Missouri is still really in process I don't know.  Go ahead. So being from Alaska I can speak to the fact that things, that usually work in other states don't usually work in Alaska. So, I mean, what kind of substance or provisions are you working in the negotiation with the settlement agreement or consent degree in this state.

BETH KURTZ: Great question!  It does depend upon the particular issues.  So the Alaska report I talked about was focused on the children's behavioral health system. I think it's worth a read.  At the end, we talk about things that a Alaska is doing and things that Alaska could do more of understanding some of the many -- all of the ways in which Alaska is different. I think that will be a really important part of the conversation.  As I mentioned you know finding a way to get intensive community-based services to kids will be important but that can happen in a lot of ways.  

It can happen leveraging schools, which I think will be -- or it could happen leveraging telehealth.  I don't know the direction that this, the specifics because no one does because they're not the remedy has not been agreed upon yet. They are really tough and interesting questions on quite how to do that in the state like Alaska. We've relied upon some really great experts with some familiarity in Alaska in helping us navigate that, as well as a ton of partners on the ground folks coming to us with their experiences and with their hopes for what they might like to see in the future.

AUDIENCE MEMBER: Hi. I am an attorney in Chicago.  The children's behavioral health you highlighted three states I suspect you can write 50 of those letters and the U.S. cannot go to 50 states working across the country, have you seen where non-government advocates have built on your work are there things non-government actors can facilitate getting to the fourth or fifth state are there are times you can work with the U.S. Attorney? Are there ways to recognize you cannot go to 50 states on every issue every time. How can we amplify the effect of the work on the department as private attorneys or non-profits where have you seen that work? I'm curious on your thoughts.

>> BETH KURTZ: Sure. So I hear you on the behavioral health issues being really prominent so the first thing I will say because it is.  The first answer I have is we do accept complaints. The regulations that out. We'll take them any time you can go to you can email us we can consider complaints we receive, that is, that was what fueled you know the cases we've made findings is the receipt of complaints.   So I'll say that.  

So we write reports and letters of findings and we PDF them and make them public when they're ready to be public. Those are documents that we would encourage you to spread and share far and wide. To the extent that might have an impact or might be interesting or might be helpful, there's also a ton of non-DOJ litigation happening in this area in particular across multiple sectors. So a lot of good partners, yes.

JULIA GRAFF: So, if you do have litigation and on the receiving end of a Motion to Dismiss or Motion for Summary Judgment, limited by our capacity to prosecute our own cases what we feel we can say that would be helpful in this case we do enjoy those opportunities to amplify the messages of other advocates who are doing that work and I will say that we do collaborate with the U.S. attorneys’ offices.  
Some of U.S. Attorney's offices have dedicated civil rights attorneys and units others don't. That collaboration looks different in every state but we do that.

BETH KURTZ: We're a little bit over 11:30 I think that's a good stopping point to say you can reach out to us any time, we are happy to talk about these issues. We want to really thank you for your attention today and appreciate you coming!

[Session concluded]