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.
MARGARET GIRARD: Hello, everyone, thank you for joining. There were so many good workshops. Thanks for choosing ours. My name is Maggie Girard, I'm a trial attorney in the Disability Section in the U.S. Department of Justice. I am a white woman. I have brown hair and blue eyes. And I am currently six months pregnant. So I am wearing the only dress that I can still fit, and a large plaid blazer.
CRYSTAL ADAMS: Hi, everyone. My name is Crystal Adams. I use she/her pronouns. I am an average height woman. I am biracial and Black. I have curly brown hair. I am a trial attorney at the U.S. Department of Justice in the Civil Rights Division in the Equal Educational Opportunities Section. And we are so excited to be here today.
MARGARET GIRARD: So today, we are going to be talking to you about Olmstead, and specifically, how it applies to services outside of the residential context, so outside of where people live.
And I was told that this would advance if I clicked on it. So Olmstead is a Supreme Court case interpreting the ADA's mandate. As a real quick overview, integration mandate is under title 2 of the ADA, that's the part that applies to public entities, state and local governments. So state and local governments typically offer services, programs, for people with disabilities, or for all other citizens really. And Title II prohibits them from discriminating on the services, programs, and activities that they offer.
One way that a public entity could discriminate is through segregation. So keeping people with disabilities separate and apart from their communities and preventing them from living full lives among people of all abilities. So to combat that segregation, the ADA implementing regulation includes what is called the integration mandate, which requires state and local governments to provide their services, programs, and activities in the most integrated setting appropriate to a person's needs. So that will be people's homes and their communities.
The Olmstead case itself was about two women who were living in a psychiatric unit in a hospital. And that case really focused on the services they needed to live independently in their own homes. And in many cases since then have really focused on where people are living and receiving services and making sure that people get the support they need to live independently and not have to live in places like psychiatric hospitals or nursing homes.
With that said, integration mandate applies equally to services, programs, and activities outside of the residential context, so where people live or where people spend their days, spend their time when they are not at home. So that's what we are going to be talking about today, how to create a service system that lets people spend their days in their communities among people of all abilities. And I will turn it to Crystal.
CRYSTAL ADAMS: Thanks. So as I said, I am in the educational -- the Equal Educational Opportunity Section of the Civil Rights Division, so my office has jurisdiction to enforce civil rights laws specific to the education system, schools. We work to ensure that students are not discriminated against because of their disability and other protected characters. And today, I'm going to discuss an active lawsuit in Georgia that my office has been working on for over ten years.
So this case, the United States v Georgia, is known as the GNETS, the Georgia Network for Educational and Therapeutic Support Program. GNETS is a program funded and administered by the State of Georgia for students with behavior-related disabilities. The program is operated all over the state, and there are four -- sorry, there are 24 regional GNETS programs. The majority of students in GNETS are placed in what is known as center-based programs. So these centers are completely separate facilities. We are arguing that they are completely segregated from students without disabilities. Students who receive general education do not attend these centers at all. Sometimes, the centers are located in the same building as alternative placement programs. So students with behavior related disabilities are co-located in facilities that are exclusively meant to discipline students for discipline issues.
Other students in GNETS are in school-based locations. So this is separate from the center-based concept. So the school-based locations are separate classrooms that are located on the campus of general education schools. But the classrooms are only serving students in GNETS. So many of these school-based GNETS classrooms are located in completely separate wings or isolated parts of the school buildings, and they often have separate entrances and separate entrance processes. Sometimes there are metal detectors. Sometimes students are not allowed to bring their backpacks or other materials into the classroom or are required to have completely transparent backpacks so adults can see through them. So that's the general overview of the program. Now, I will talk about more of the specifics of the lawsuit.
So in 2016, my office sued the State of Georgia in federal court in the northern district of Georgia. And we have claimed that the state's administration of the GNETS program violates title II of the ADA by unnecessarily segregating students with behavior related disabilities and by providing them with unequal educational opportunities. We are asking the court to declare that Georgia is in violation of title II, and we are asking the court to order Georgia to provide mental health and therapeutic educational services and supports to students in or at serious risk of entering the GNETS program. So that when appropriate, the students can return and remain in integrated schools.
Throughout the litigation, we have learned a lot of very concerning information about the GNETS program. We've learned that the state unnecessarily relies on and has created significant financial incentives for school districts to send thousands of students to the GNETS program rather than providing or paying for these types of therapeutic services in integrated educational settings or in the community, close to students' neighborhoods and peers. Students in the GNETS program have little to know physical access to their nondisabled peers. So they barely interact with their nondisabled peers at all.
Students in the program are often denied access to the use of common spaces like cafeterias, gymnasiums, libraries. If they have access, which, again, not many of them do, they are often not allowed to use those common spaces at the same time as their nondisabled peers. The state does not ensure that teachers and other staff have the training to enable them to festival support students with behavior related disabilities in an integrated setting. So what we have seen happen is in the general education setting, these students are with teachers, with staff, who don't know how to support them, don't know how to provide proper interventions. Instead, the teacher says this student is a problem. We need to remove them from the setting. So it's a very quick escalating to a more restrictive setting in the GNETS program.
And the students in GNETS are often denied opportunities to receive age appropriate instruction from qualified teachers. And they are also denied opportunities to access specialized classes like electives, art, music, and also extracurricular activities. In addition, the conditions of GNETS facilities are often inferior to those provided to students in general education settings. Especially in the centers that are, again, physically separate buildings, there is often really horrific conditions, Mold, poorly maintained facilities, facilities that are not maintained at all. Of note, some of the G net centers that are used have been located in buildings that were used as completely segregated, racially segregated, buildings during the Jim Crow era. So there is a really long historic line of these buildings being used for segregation.
The good news is our experts found that the majority, the vast majority, of students in the GNETS program could be appropriately served in general education settings if they are given appropriate services and supports, which we fully expected our experts to include. So I really am thrilled that we have made a lot of progress in this lawsuit. And I will touch a little bit toward the end of the presentation about where we are in terms of our current status. But before we do that, I wanted to highlight a couple of slides that just give you a sense of the current conditions of the program. And I can tell you a little bit more about what our experts found. So this first slide shows a photo of an elementary school playground. This playground is at one of the school-based GNETS locations. So, again, this is facility that has students who are in a general education program, and then there is also a separate kind of separated section of the school that's committed to the GNETS program.
The photograph in this slide show shows two empty outdoor playground structures. The two playground structures are physically separated by grass. The playground on the right with the fence surrounding it is for students in GNETS. The playground on the left without the fence is for students in general education. So this is a very clear example of how students in GNETS are physically separated, literally, from their peers. They are not even allowed to play in the same area. If in certain circumstances, there is a school that just has one playground, we have learned that students are just not allowed to play on the playground at the same time. So the students in the general education program get to play, and then there is a separate time that the students in GNETS are allowed to play.
The next slide shows two photos of an isolation room used in the GNETS program. The isolation room is windowless and poorly lit. It has bare tile floors and cinder block walls. The room is empty except for a single bean bag chair. There is a heavy metal door that locks from the inside. The door has a narrow slit with a window into the interior of the school building, but it is otherwise completely solid. Isolation rooms are, unfortunately, very common in GNETS. Instead of providing students appropriate interventions and supports that they need, staff will force students to remain in these rooms against their will. Students have been left in these rooms for long periods of time to the point where some students have urinated and defecated while inside. And our expert traveled all across the state viewing schools that had these rooms and this is just one example of pictures that she took. And she saw actual remnants of feces and various signs that students had been left in their own filth for long periods of time.
Our expert compared these rooms to jail cells. These were just two slides that I wanted to show just to really, you know, hit home just how egregious the conditions are for these students. There really are very few therapeutic services in these facilities, and even though students and their families are often promised that, well, you need to go to this program because this is the place where you are going to receive the services and support that you need. In actuality, you can see that's not what is happening. So to zoom out and talk a little bit about the current status and next steps of the case, my team is working really hard to obtain relief so that students in GNETS can learn alongside their nondisabled peers and access equal educational opportunities.
We are preparing for oral argument. And that's happening next month. We have -- the parties have filed across motions for summary judgment. And so, the state and DOJ are both asking for the court to rule in their favor. So we'll see what happens. And depending on how the court rules on summary judgment, we may be headed to trial, or there is a chance that the case could settle.
And in the meantime, we continue to engage with various stakeholders including families, attorneys, and advocates, to gather new information about what is happening in GNETS.
I am really happy to say that since DOJ got involved in this case back in 2012, there have been significant changes in the state around this program. I think for the better. In one case, we have just continued to track the number of students in GNETS over time, and it has definitely decreased since DOJ got involved by, you know, the thousands of students. So we definitely think that our involvement is helping raise awareness, raise, you know, everyone's understanding about what these students actually deserve. And it's been really rewarding to be a part of the work. So those are the end of my prepared remarks. I'm happy to chat at the end if folks have questions and to have more discussion.
MARGARET GIRARD: Thank you so much, Crystal. I'm going to be talking about a completely different set of services, employment and day services. So employment services are services that help people with disabilities get and keep jobs. And day services are services that help people spend and plan their days when they are not working. So we, DOJ, first published a guidance document about employment day services back in 2016. In 2017, during the Trump administration, we withdrew the guidance from further input from stakeholders. We reissued it this past October. On the screen is the title of the guidance document, which is "questions and answers on the application of the ADA's integration mandate and Olmstead v L.C. to employment and day services for people with disabilities." I give us a ten out of ten on descriptiveness and zero out of ten on creativity and marketable.
(Laughter).
But I will tell you more about this guidance document, which was really fun to be a part of. Just to give you an overview of how these services look in both integrated and segregated settings. So integrated employment services help people find and keep jobs in their communities. So as an example, a person might start by meeting with a career counselor, talking about their interests and their skills and having the career counselor help them find a job that matches their skills and interests. So someone who loves being outside and working with kids might really love working at a local rec center and coaching youth soccer.
Once a person gets a job, they might have a job coach who goes to the job with them and kind of gets them oriented, interacts with their co-workers and helps them kind of learn the job.
So the level of employment services really should be driven by the person. So a person who might say, you know, I don't want my job coach to come to work with me. I want to go and manage my job on my own and have my own interactions with my boss. But it's really helpful to check in with a job coach, talk about issues that come up at work, problem solve, figure out how to ask for a raise or a promotion. Other people will want that daily support at their job. So it should be something that is driven by the person.
Another really important part of employment services is benefits counseling. So a person who gets public benefits like Medicaid or Social Security might have questions about how working and making money is going to impact those benefits. And that's where a benefits' counselor can really help them understand how working may impact their benefits or may not impact their benefits. So there is often a misunderstanding that, oh, if I work, I'm going to lose the benefits that I have. So a benefits counselor can really walk through the person's actual options and clear up if there is any misconceptions.
So on the other side of integrated services, there is integrated day services. It should also be individualized and person centered. So the goal is really to help the person put together a day that looks like a day that anyone can have. Maybe they get up and they want to run errands and get lunch with friends. Then take an exercise class at a local gym. So a truly integrated day is driven by what the person wants to do and helps them participate in mainstream activities among people of all disabilities. So that's kind of the snapshot of integrated services.
On the flip side, segregated services are -- segregated employment services are services that group people with disabilities in settings where they only work alongside other people with disabilities. So one sort of Example is a sheltered workshop. This, as an example, might look like a large packaging warehouse that only employs people with disabilities. So a person with a disability arrives, they clock in, they spend all-day packing goods into cardboard boxes. All of their co-workers also have disabilities except maybe their supervisor. There are sheltered workshops where the production floor is a big warehouse and then the supervisors are literally in offices on floors above looking down on the people as they are working.
And then they often pay people with disabilities less than minimum wage.
And sheltered workshops are often a default setting for people with disabilities where people are told your only option for working is to work in a sheltered workshop.
Another example is an enclave, which is a small group of people with disabilities that perform work together. So an example would be maybe a large company that has a grounds' keeping staff that's entirely people with disabilities. Again, except possibly for a supervisor. So enclaves are a little different because they might physically be located within a typical workplace, but they are keeping the people in the enclave separate from their other co-workers at the workplace. And enclaves are similarly often the default employment setting for people with disabilities who are told this is your only option if you want to work. Sorry. I'm getting a little excited when I talk. (Laughing).
So segregated day programs are nonwork settings where people spend most of their time with other people with disabilities except possibly for paid staff. And Part ever why this guidance talks about employment and day services together is because segregated day programs are often an alternative to working in an integrated job. So in the residential context, it's more, you know, either you are living independently or you are living in a facility. It's more one or the other. In the employment and day service context, it could be that someone works a couple hours a day, a couple days a week in an integrated job, then the rest of their time they are going to the segregated day program. Or it's not like if you are not working in a job, you are necessarily working in a segregated job. You might be going to a segregated program. The employment system and day system really interact in a way that is not always the case in other contexts.
So a segregated day program is typically facility-based. So a person might get picked up in a van and brought to a facility doing group activities with other attendees. A typical day could include activities at the facility like crafting or watching TV. Some day programs have educational programming like classes about understanding and managing a mental health diagnosis. But, again, all at the facility and all among other people with a similar diagnosis. There are someday programs that have outings into the community. But if it is a more segregated program, those outings will still happen in sort of supervised groups. Like, for example, a group of day program attendees might go into a bowling alley, they might be completely separate from anyone else who is bowling, so they are still segregated.
The day program schedules are often set by staff. A person shows up and is told here is what you are doing today, who you are doing it with. If you don't want to do it, you can stay here at the facility or sit alone. It's not driven by what the person actually wants to do or who they want to spend their day with. So that's kind of the overview of how those services can look. Then the guidance talks about some best practices for employment and day services. So one thing that we talk about is how, this kept of employment first, which some states have started passing. It's this idea that employment should really be the first and preferred option for adults. For a working age adult, the assumption to be that they are going to be working, that should be the rule rather than the exception.
And I want to say a little more about this concept of employment first because, obviously, the goal of employment services is to get someone a job that's meaningful and fulfilling and makes them happy. I think anyone who has ever worked shares that goal. But there are a lot of bad jobs. There is bad employers, there is difficult work places. So the concept of employment first is not so much that having any one particular job is some sort of magical thing or necessarily therapeutic. It's really this concept that employment is a really important social determinant of health. Long term unemployment is associated with all kinds of negative health outcomes, negative mental health outcomes, physical health outcomes, financial health.
So when you are thinking about employment first, it should not be you get someone a job, bing, bang, boom, you are done. Great. We have succeeded at employment. It's really thinking about employment over the person's lifespan and starting from when they are leaving school an getting their first job through their career development and into planning for retirement.
So that's really I think the concept driving employment first rather than the goal being to get any one particular job.
So as we already touched on, employment and day services need to be individualized to be effective. The idea is to build a life just like anyone would lead. And a person's services should reflect what they want to do for work, how much they want to work, and how they want to spend their time during the day when they are not working. And services should also last for as long as a person needs them. Again, thinking about the person's entire lifespan and their service needs may change over time. Someone may need a job coach every day for a couple weeks, and then start to gain some independence in their job. I'm settling in, I think I can handle this. A different person may want someone to work with them every single day. The goal is really to help the person succeed in the career across their lifespan and not sort of have services drop off once a person just settles into one particular job.
So the real meat of the agreement gets into how the Olmstead framework applies to employment and day services. So I will go into that a little bit. So the Olmstead case says that people must be served in the most integrated setting appropriate to their needs. So one question is, what evidence does a person need to show that an integrated employment and day services are appropriate for their needs? That could be very formal. There is vocational assessments that a professional might do. But that's not the only way. It doesn't need to be something formal. You could say other people with similar disabilities are working in the community, so I can too. Or a person may have their own work history, they may have held integrated jobs in the past. Does not need to be an integrated formal assessment or anything like that.
Olmstead says that people have to be served in integrated settings if they are not opposed to integration. So how do you determine whether someone is opposed? And this section really gets at the concept of informed choice and whether a person has had an opportunity to make a choice about where to get their services. So many people with disabilities have may have been told for years that they can't work at all or that their only work options are their sheltered workshops or these enclaves. If that's the narrative you have been living with for years or decades, you might understandably have concerns about what it would look like to be in a community-based job, how will that look? I have questions, I have uncertainties. And state and local governments need to take affirmative active steps to overcome those fears. The fact that someone has concerns or uncertainties about working does not mean that they are opposed to working.
So the public entities themselves are responsible for educating people about what it might look like to work. That can look like visiting people at job sites, talking with peers who are working, and really figuring out what it takes to overcome an uncertainty that someone might understandably have. And then finally, we get into what remedies can address Olmstead violations in employment and day service context. So that's a lot of things we've already talked about. So active steps to educate people about what integrated services are going to look like. That really individualized service planning, helping someone put together a day that works for them and what they want.
And then also, what is known as transition planning. So for youth with disabilities, so children who are often getting services through their schools and through children's focused programs, need to have a plan about what it is going to look like when they become adults and they leave school, stop getting school-based services and are moving into the adult system. So transition services should be preparing them to live integrated lives as adults. So that can be things like internship experiences in work places and the community. Early career planning, getting at what their interests are before they make that transition.
So that's our guidance. I want to highlight some recent developments in employment and day service case both because it has some drunk driving examples of how this looks in practice and because this case contains some lessons learned for us as we are entering into agreements with states around these types of services so that case is Rhode Island. In the screen, there is a colorful picture of some boats on a dock. I found on the PowerPoint, but there is no actual significance to the case, but I found it nice. So Rhode Island is an employment and day service case specifically about adults and youth who have intellectual and developmental disabilities. Although, employment day services are broad. They cover all kinds of disabilities. This one is about adults and youth with intellectual and developmental disabilities or IDD.
So back in 2013, we found that the State of Rhode Island funnels people with IDD into sheltered workshops and segregated day programs instead of helping them find jobs and spend their days in their communities. So one example from one of the larger service providers in the state, they had a day program in a dilapidated former elementary school. So since the elementary school was in a neighborhood, there were no nearby shops or restaurants or public spaces or public transportation. So people would show up at the day program and typically spend their entire day there without leaving.
People who attended this day program who wanted to work could do things like packing up medical supplies for less than two dollars an hour. I think there was one person who was making 20 cents an hour. Then people who didn't want to work and wanted to do nonwork activities could do things like play cards or color. There were people at this program who attended for decades with no opportunities to spend think that day any other way than going to this former elementary school and coloring.
Also had public high schools that had sheltered workshops in the schools. So kids as young as 14 were required to work in the sheltered workshops doing things like hand sorting buttons for little or mostly no pay. And those same kids were not given any chances to explore future careers or get integrated work experiences while they were at school. Then they were often directed straight from the sheltered workshop at their school to a sheltered workshop for adults as soon as they left school.
So in April 20s we entered into a consent decree with the state, requiring Rhode Island to rework its statewide service system for adults and youth with IDD so that they could work and spend think that days in the community and access those integrated employment and day services. So some positives from our consent decree, Rhode Island closed all of its sheltered workshops. There are currently no youth working in them. There are sub limited wages for IDD. Everyone has to make at least minimum wage. Those are some positives. The story doesn't end there.
Since the decree was signed, we have been closely monitoring along with the court -- complying with the state decree, which was supposed to end this coming June, June 2024. So in September of last year, we DOJ filed a notice with the court saying Rhode Island is not going to make it. We don't think they will be in compliance with the decree in 2024. The court monitor agreed. And four days later, the court issued a very detailed addendum requiring Rhode Island to take additional action over the next two years, June 2026, to come into compliance. The addendum doesn't modify what was in our consent decree, but it provides a lot more detail about what it is going to take for road identify land to come into compliance in the remaining time.
So a take away I think we had from this case is in our agreements with states, we set ambitious but obtainable goals. We generally don't micromanage how states attain those goals.
Rhode Island is an example of a state that didn't reach its goals in time. Now the court has at the eleventh hour laid out the detailed plan for what it is going to take. Our takeaway is that states should make sure they have early and specific action plans for the systems change that it is going to take. There should be early and regular benchmarks to make sure that the state is meeting its goals all along. Which Rhode Island actually had. They had regular specific benchmarks, but the key piece they were really missing is not doing enough early on to collect and analyze accurate data to show that it was actually meeting those benchmarks. So without that data, Rhode Island really didn't have any way of knowing whether its compliance efforts were actually working and actually achieving its goals.
Getting good data is really hard. It requires a lot of work. It can, you know, require a state to completely rework how it collects data, how it analyzes data, what systems it is using for data. That's a lot of upfront effort and cost. But without good data, it's very possible for a state to put a huge amount of effort into compliance without getting any real results, without knowing that that is actually working. So data is a really, really important tool for understanding what's working, what's not so that the state can course correct early on before it's too late.
So a couple of specific things that were added through the addendum. So our original consent decree required the state to fully fund its employment services and increase its provider pool so there are enough providers statewide offering integrated services. So the addendum requires the state to specifically to increase the provider reimbursement rates. The court monitor said, Rhode Island you are not paying these people enough, you need to pay people more to be doing this work.
The addendum also requires the state to restructure its reimbursement model. Rhode Island has been using a fee for service model where providers bill for each service they provide. So now Rhode Island is going to move to a system where they are creating individual budgets each person. That is a three step process. Looking at the person's needs and putting together their own unique budget. And it's a two part budget. So there is a budget for the person's core services that are kind of the standard services that Rhode Island offers to every person who is eligible, and then there is also a separate budget for services that are unique to a person. So if a person needs their own budget to take public transportation to work, their personal budget will reflect that even if it is not the typical array of core services that the state offers. So it's really facilitating access to services and making sure people can actually use the services they are entitled to.
And then also very importantly, the addendum requires the state to develop a comprehensive methodology for collecting and reporting data. So this includes some really funnel fundamental things, a list of everyone in the population and whether or not they are employed. You need to know early on, you need to know who people are to make sure you are serving them appropriately. Then also collect baseline data about current provider workforce. Things like how many staff there are, average starting wage, turnover rates, again, to make sure that the efforts that Rhode Island is going to put in over the next two years are actually resulting in more staff and more providers.
So we are continuing to closely monitor the state's progress and see how the lives of our focus population members have changed or have not changed across the lifespan of our consent decree. And we look forward to seeing Rhode Island's progress over the remaining term. So that is the end of my prepared remarks. And we are going to have time for questions. But I first want to welcome Brit Vanneman from the Bazelon Center who is going to give a few comments on the case in Alameda County in California.
BRIT VANNEMAN: Do I need to come up and use the microphone? Surprise performance. Hello, everyone. My name is Brit Vanneman. I'm a staff attorney at the Bazelon Center for Mental Health Law. I'm a white woman with long blond hair. I use she/her pronouns. I wanted to take a second to share an exciting update from a case in Alameda that I know many of you know have been following and that we strongly believe represents needed progress in the fight to expand Olmstead principles beyond the residential context, which is the theme of this presentation. And to use Olmstead to help prevent the unnecessary incarceration of people with mental disabilities.
So back in 2020, Bazelon Disability Rights California, DREDF, and the firm of Goldstein, Borgen, Dardarian & Ho filed an Olmstead case in Alameda County, California, focusing on individuals disproportionately Black who cycle in and out of the County psychiatric hospital. And important to this panel today who also cycle in and out of homelessness and jail. To give you some statistical background, in Alameda County, half of the jail inmates with mental health disabilities are Black. Although they only make up 11% of the County population. Of those who cycle in and out of the hospital, a 55% are Black. Raising typical Olmstead alarm bells, we felt compelled to bring the case for many reasons. First, that folks should not be segregated in locked psychiatric institutions, but also, because mental health and mental health disability should not be criminalized. And they should not be forced into homelessness.
Further, we hope the case would expose a system's deficiencies that result in disability discrimination and racial inequity and injustice. People of color particularly Black people bear the brunt of Alameda County's failures.
So the complaint highlighted both the racial disparity and the Olmstead claims and sought expansion of community services including crisis services, supported housing, intensive case management, treatment delivered by mobile crisis teams, peer support, and supported employment. Some of the traditional Olmstead remedies that we seek. The U.S. Department of Justice entered the fray issuing an official letter of findings in April 2021. In the letter, DOJ concluded that the county was violating the ADA and that people with mental health disabilities in Alameda County find themselves unnecessarily cycling in and out of psychiatric institutions and jails because they lack access to proven services I would allow them to recover and participate in community life.
Specifically, DOJ concluded first that Alameda County violates the ADA by mailing to provide services to individuals with mental health disabilities in the most integrated setting appropriate to their needs by unnecessarily institutionalizing them at a psychiatric hospital in the state and subacute facilities. Second, DOJ found that many individuals with mental health disabilities have encounters with the criminal justice system driven in part by unmet mental health needs. Third, DOJ concluded that the county's jail fails to provide constitutionally adequate mental health care to prisoners including those at risk of suicide and violates the ADA by denying prisoners with mental health disabilities access to programs and services because of their disabilities. And finally, DOJ concluded that the jail experiences of prisoners of mental health disabilities place them at risk of repeated or unnecessarily lengthy psychiatric institutional stays after release.
In November 2023, DOJ filed a motion to intervene as well as a proposed celt agreement. After lengthy negotiation, Disability Rights California, Alameda County and DOJ entered into a comprehensive settlement agreement which addresses the provision of community-based behavioral health services in the county. So really great thing. The settlement strengthens and expands services available to people with serious mental health disabilities with the goal of preventing unnecessary psychiatric institutionalization and incarceration.
So here are just a few key aspects of the assessment agreement. So first, Alameda agreed to enhance discharge planning and coordination with community-based organizations and facility-based discharge planning processes, and to enhance connections to services for eligible individuals in the county psychiatric hospital, the county jail, and other facilities in Alameda.
Second, the proposed settlement agreement requires the county to provide timely mobile service throughout the county. These efforts will include conducting assessments of needs and gaps in mobile crisis coverage and intensive mental health and case management program, which will be informed by data and community stakeholder input. The county has committed to expand mobile crisis teams and service capacity based on these assessments as reasonable and appropriate.
And the county agreed to continue operation of nine mobile crisis teams to provide in-person response to behavioral health crisis with the purpose of reducing interactions with law enforcement. Third, Alameda County agreed to provide intensive mental health housing and employment service including making efforts to contract with one or more community-based providers to serve individuals in peer respite homes, to continue to expand culturally responsive and affirming behavioral health services, including through community-based and peer run organizations, to help reduce behavioral health disparities across racial, ethnic, cultural, and linguistic groups.
To reduce emergency and voluntary commitment rates at the state psychiatric hospital, to increase the use of voluntary community-based services, and the proposed settlement also requires the county to reach out and engage proactively with people who have serious mental illness. This includes expanding and deepening linkages services and outreach including meaningful outlets, to provide meaningful time scheduling, timely in the field assessments and authorization of services. Things that actually enable people to get the help that they need. Fourth, the settlement requires hosting a stakeholder and community input meeting with within 15 months to seek community feedback on culturally responsive services. Within one month of the meeting, the state will post a data dashboard publicly for active review and consultation.
Finally, fifth under the agreement, an independent reviewer will report on Alameda's progress and implementing the settlement over the next three years. While I was not a part of this litigation team, I'm thrilled to present the work on behalf of Bazelon. I'm happy to take questions back to the settlement and follow up with answers. I wanted to share one quote from a colleague who did work on the case. He said the problem is something we see in communities across the country. People with mental health disabilities cycling between hospitalization, incarceration and homelessness. We also see racial and ethnic populations in the community and across the country too. That's the problem that we tried to address in Alameda, we hope the settlement will be a model for other communities to follow in addressing the needs of these individuals. So an exciting update there that I wanted to share with you all. Good news.
MARGARET GIRARD: Thank you so much. And thank you for the shoutout. I'm happy to open the floor up for questions. My email is up there. I did not make it unreadable intentionally. The same format as crystals. Oh, and we can pass you the microphone if you wanted. If you are loud like me, you can also just shout. Let me know what you prefer.
SPEAKER: Hi there. I'm Evan. I'm a new staff attorney at the Arc. We are working on the other GNETS case. So nice to see you guys. Actually, I had two questions about Rhode Island. First question I had was, and I know the consent decree was a while ago back in 2013, but I'm curious what the reaction was from the state to closing facilities, because I think using Olmstead as a tool to close facilities sounds great in theory but at least based on my research, hasn't really been done a whole lot. So I was curious about the states -- My second question about Rhode Island was, you mentioned the budgeting system, which sounds really cool. In terms of those services that weren't provided by the state initially, like you mentioned transportation services, how are those paid for? Does the state pay for those through a Medicaid waiver? Or is that paid for out of pocket by the individual and just included in their individualized budget?
MARGARET GIRARD: Thank you. So on the first point, you gave me a chance to clarify. We did not require Rhode Island to close its workshops. They actually close to do that on their own. When we first rolled out our findings in Rhode Island, we had a lot -- there were a lot of people in the state who were very nervous about closing the sheltered workshops. Said, I worked here for decades or my child worked here for decades. How does it look like you are not having this option? You are taking away choice. But Rhode Island just made that choice on its own. That was from them, not from us.
And the second one, I actually don't know the answer to. So I'm going to find that out and get back to you. I appreciate the question. And I think I should say, the ADA applies to state funded services as well. It's not just through Medicaid. So to the extent that Rhode Island had state funded programs for those sort of unique services that were not Medicaid services, I imagine the funding would come from that, but I have to check.
ATTENDEE: I'm Sharon. I was curious, what hits me about these huge system change cases is the amount of time and resources that go into it. So I was wondering on the Georgia case, does Georgia really believe that they are going to win on the law or is it they want to get a court order to require that the legislature put the money into the change? Are they saying this is a fundamental -- what is it that they are compliant in? They cannot be compliant with the law, because it is millions spent on this kind of case that could have just gone into the services.
CRYSTAL ADAMS: Yeah. Thank you so much for the question. I, certainly, don't know what is going on in their minds, but I can say what they have done publicly. Their current summary judgment briefing does raise fundamental alterations that's an affirmative defense in Olmstead cases that you can raise. The whole concept is, well, the reasonable modification piece, that requires reasonableness. So under the fundamental alterations affirmative defense, the defendant can say, your proposed changes to our programs are not reasonable. It would actually require too much of a change and, therefore, it's not lawful under Olmstead. So they did not plead that. Which is interesting. They did not plead it in the normal course. They just raised for the first time in summary judgment. So we are having some back and forth about that.
(Laughter).
So that's definitely to be a huge focus of oral argument next month. Before summary judgment, they were really focusing on saying that, listen, you are suing the wrong folks. This is a school district matter. This is a local issue. This is something that's very common in education cases. If you sue an entire state, they will say, oh, we are local controlled. This is a school by school, school district by school issue. And there is, obviously, a huge problem. Trying to address a systematic problem by playing whack a mole. So they really focused on the language in ADA that's talking about administration of a system services. So they were really trying to win on that particular piece. So in that sense, I think, you know, they are hoping that the law is on their side around whether we can prove that the state is, in fact, administering the program. We feel great about that but, you know, we will see what happens at summary judgment.
The court has been in our favor the entire way. So, you know, we've been able to get to summary judgment. The state's motion to dismiss was denied. We've been able to get to summary judgment, and, basically, the state is saying the exact same thing again about, oh, we don't actually administer the program. This is all local school district decisions. So that's, I would say, the main argument. And, you know, we think that they are really focusing on that because in terms of our merits in terms of Olmstead, you saw the pictures. There is a lot of really harmful evidence out there about what is actually happening on the ground. And to touch on something that Maggie shared earlier in terms of the specific pieces of the Olmstead claim and what we are, as plaintiffs, are required to prove, in terms of the do not oppose piece, we have been able to learn from plenty of families that families do not oppose returning to the community. Right? So that's a big piece of our argument is, not only do we feel like from our experts we have reasonable modifications, increasing services to these families, and, in fact, these families want to return to that environment.
Thank you so much for your question.
ATTENDEE: Hi, everyone. I'm Jasmine Harris, I'm also from New York. So I'm going to be screaming. So you probably don't need a mic. University of Pennsylvania law school. I have two questions that are selfishly relate to my research but are directly on point here. The first, how do you see the Alameda consent -- the Alameda assessment dovetailing with the care -- how do you see those efforts specifically thinking about efforts to move people away from the court system also with efforts moving people towards the court system, particularly, unhoused individuals?
The second question has to do with GNETS. The second question with GNETS has to do with private equity and thinking about the private equity structures. Has that come up in terms of the case, in terms of thinking about other providers that are like GNETS given their private funding structures? Is that being talked about at DOJ? You may or may not be able to talk about that. Those are the two questions. Thank you so much.
SPEAKER: I can start. So to speak to your first question about how things like the Alameda settlement and these types of questions definitely coordinate to the care courts. I think it is our response. I think it is directly intertwined when we are seeing court systems really focused on reinstitutionalizing people with mental disabilities in different ways. So they are using different tools to do that. And they are increasing efforts to criminalize things like homelessness, to criminalize just normal behavior. Right? So the Alameda settlement I think is a way to get at the interaction between these different processes using Olmstead as the tool.
And I think, you know, there is great success there. There is also challenges, right, because it is a bit like playing whack a mole. Which jurisdiction do you go to because care courts are being marketed as extremely successful? We know that's not true. It's really harmful. I think we have a huge issue as a community to figure out where do we prioritize this work and where do we have the best success at expanding Olmstead in this way to put other communities on notice that we are watching, that we don't think things like care courts are legal.
But I'm going to look at my colleague Megan to see if she has anything else to say about that.
SPEAKER: Sorry, hi. Megan Schuller, legal director of the Bazelon Center for Mental Health Law. Brit did a great job. I think the reality is the care courts in California are just starting to be implemented now. And more of the musical chairs. And, you know, we are watching to see how that goes and exactly what is happening and we are talking a lot to Disability Rights California about that, about what they are seeing on the ground.
Disability Rights California just released a really powerful report that look like from your nodding, you have seen about what is going on in L.A. Which I think is sort of the first step in the response. I think they too are watching to see what's going to happen with the care courts. We, obviously, as Brit said, have a lot of concerns about how that is going to perpetuate the general problem of cycling and criminalization of mental health, and the fact that for a lot of people, they are calling 911 because they feel that a family member or somebody needs care and they don't have any other options. So, you know, a lot of our focus at the center is making sure those other options exist. There should be those community-based treatment options that are as intensive and that are wrapping around the whole person, providing the full array of services, plus employment, plus housing, that people need to be successful outside of being in either jails or institutions. So I think Alameda is really a case to watch and a great model. We didn't get to see exactly how it would play out in litigation. The initial complaint was actually dismissed and then amended and refiled, and intervening events led to a wonderful assessment that will also have to see how that goes in implementation, which will be participating in and partnering with other rest of the co-counsel on.
But I think it is one to really look at as how do we expand Alameda. The topic of this very panel -- sorry, not Alameda, how do we expand Olmstead to address these issues? And for those folks who are far more experienced Olmstead practitioners than I, there has been a long debate and discussion of, do you try to call jails institutions under Olmstead given the amount of mental health treatment and care and the population now being housed there? There is a lot of challenges to do so. I think those conversations are going to be ongoing. But this was a step in the process of how can we take this incredible precedent and the power of the ADA to try to address what is, you know, some of the most pressing issues of our time for people with mental health disabilities in particular.
CRYSTAL ADAMS: I'm sorry you guessed correctly that I don't have much to share on that point. You know, we are focused on the public school system and what the state is doing within its public lens. So yeah, there is nothing public that I can share in terms of that piece. But I think it is a great question.
MARGARET GIRARD: Do we have time for one more? I think I saw one more hand, maybe.
ATTENDEE: I struggle with being blind. Hi -- I actually.
CAPTIONER: Can you use the mic? I'm sorry.
ATTENDEE: I thought I was loud. I'm from New Jersey.
(Laugher).
Thank you. I serve as senior counsel in the Office for Access to Justice at DOJ as well. So hi, colleagues. I had a question, I don't know if you can answer this, Maggie, regarding Rhode Island. You mentioned the issue of data. And one of the things that we are thinking about in the justice system context is this huge, huge problem of lack of data about the experiences and outcomes of people with disabilities. So I was curious if you are able to delve a little deeper into what specifically the challenges are that Rhode Island is having in terms of having the data to evaluate the efficacy of some of these solutions. Is it the linkages between different data sets, from different agencies. Are there other issues? I'm curious if you had any insight.
MARGARET GIRARD: I will say, I wish I had more insight. This is my colleague's case. I'm speaking on her behalf. I think it is a little bit of all of it. I think their existing data platforms like how they actually stored data was not in the 21st century. It was behind. So even the way that providers and case managers would go out and input data was behind. So it was a problem of collecting good data in the first place.
And then I think the problem that you identified of having data very siloed between what the providers could see about a person was not the same as what the case managers could see or what the state on their end could see. So everyone had different data sets that didn't talk to each other well, they didn't share data well. So I think that was a big piece of it.
And, again, it's really expensive to upgrade your data system and to use sort of the latest platforms. But as we've seen, it's so important to make sure that you are able to collect and analyze good data. And that your data systems are integrated across entities and across agencies. So that everyone can kind of look at the same data set and everyone can know everything that everyone else knows.
CRYSTAL ADAMS: I will also quickly jump in on that point. If the GNETS case, we have been looking at data as well because we have found that the state is not actually tracking which students are receiving services in the integrated environment and then going into GNETS, which students are not receiving services and then going into the GNETS environment. So one of our big reasonable modifications suggestions is, use your data to actually identify students who are at serious risk, provide them services, preventively before they end up in that situation, and track which services students are receiving, how that is going, and then if they end up in GNETS, drill down, understand, did they receive the correct services with the sufficient intensity, et cetera?
So I think Maggie addressed one piece of it. Then, on the other hand, you also need whatever entity or system that you are looking at to actually care enough to say, okay, we are going to focus on this and get the data collection part correct so that we can even have the correct picture to look at and analyze.
MARGARET GIRARD: We should talk more. We have a disability section, the Olmstead team, we hired a program specialist who has a Ph.D. that includes data analysis. She is my favorite person to talk to. I'm sure she feels like she is talking to a five-year-old. I love talking about data, how to collect and analyze data, in a rudimentary and lawyer leeway. We should talk.
If everyone is okay. Everyone can leave if you need to.
ATTENDEE: I don't know if people want to leave. Hi, Jesse. One thing that seems to be a commonality across a bunch of these cases is that these disability issues, disproportionately affect people of color in the mental health setting, GNETS. I worked at a school, seclusion cases, it was students with disabilities but majority of students of color with disabilities.
And I know I quickly said the complaints that you guys at Bazelon, and I see you mentioned the disproportionate racial impact. But the claims are all disability claims. And I'm wondering, I have not tried to bring any case that combines a race-based, disability-based claims, and I think there are difficulties with that legally. I'm wondering what you all have thought about that. Is it worth mentioning in the complaint just to put it out there? Does that potentially create a legal problem with causation? I don't know. I'm curious what you all thought about this.
MARGARET GIRARD: Yeah, I will say -- because we are ADA practitioners, there is a big temptation to sell what you know and stick with what you know. So I have seen other practitioners and actually there was a statement of interest that I wrote in North Carolina where the point that disability discrimination often disproportionately impacts people of color is included in sort of an atmospheric way, but we are not addressing it through the law, I think there is a lot more thought to be done about what it would look like to bring a combined ADA claim with a racial discrimination claim. I think it would be a really great thing to work on.
SPEAKER: Can I jump in on the Alameda case? It was definitely a very conscious decision in the Alameda case. It was one that the team, which was long before my time at the Center, talked a lot about. And it's coupling up, I think more and more now also in these cases to deal with law enforcement responses to mental health crisis and, you know, the new Department of Justice guidance, the findings in Minneapolis and Louie advice with the Department of Justice, they were discriminating under the ADA by sending police that were calls appropriate for a mental health response and should have received a mental health response just like a physical health crisis would get an EMT medical response.
And a lot of the time, there is a huge intersection between disability and race in those cases. I think we think it's very important to include that even if it is not its own claim, to call it out, to raise that. And it was something that the team very deliberately decided to do in Alameda. But as you said, there is complexities to bringing both claims. There is some concerns of does this now say, we have to meet the but-for causation requirement. Are they going to say it is something else? Are they are really going to say no, no, we were racially discriminating not against disability. I think you have to be careful and thoughtful about it. I think and hope there will be a case where we are able to bring both claims. It's something we are thinking a lot about. But, again, when we are trying it push the ADA into these new areas like Alameda did, like is now happening in addressing police response, then I think it is also a question of do you now also try to make that the first case where you bring in ADA and race claim?
So I'm glad you raised it. I think it is worth including, it is worth talking about more, it is worth raising in our complaints more. And the Bazelon Center also worked really closely with LDF on a policy paper to raise that intersectionality and the disproportionate impact specifically with Black men with mental health disabilities. But legally, I think there are charges and things that we have to think about as we do that.
MARGARET GIRARD: To add to that, part ever what makes Olmstead such a powerful tool, the case says segregation is discrimination. You don't need to show any kind of intent behind the segregation, the fact that the segregation is discriminatory.
So I can understand where it gets complex is if you have a different law that does have some sort of intent showing requirement. And that's harder to prove than just this person was segregated, therefore, they were discriminated against. So I agree it takes a lot of thought and there is a lot of complexity there.
CRYSTAL ADAMS: Yeah, I will just add. Even though GNETS does not -- our lawsuit does not have a specific focus on race, I just want to make sure that everybody knows that you can file complaints in the civil rights portal. And if you see intersections of discrimination on the basis of disability and race, we welcome all complaints. Then we can investigate and see where that goes.
So that's, certainly, something that can be brought to us. And we welcome the opportunity to hear from advocates informally and dialogue and understand what issues you are seeing on the ground. So that's why we have our information up there. So we are always happy to collaborate and learn more.
MARGARET GIRARD: Yeah, legal complexity aside, I think it is clear that people really care about and we want to hear.
ATTENDEE: Michael Bean. Just not an Olmstead case, but we just added in our San Diego jail case for the first time race discrimination over incarceration as part of an ADA and 8th amendment and 14th amendment. Not part of our usual tactics, but we are trying it out. And we survived the motion to dismiss. Now, we are looking at summary judgment, trial coming up. So we'll see.
MARGARET GIRARD: So please direct all future questions to Mr. Bean.
(Laughter).
ATTENDEE: We want you guys to come in.
MARGARET GIRARD: We love being invited. We don't always show up.
(Laughter).
Any other questions?
ATTENDEE: I have one more. I got a call this week from someone who is in enclave with an AbilityOne group, but with a contract with Feds. This federal agency will not let the job coaches on-site anymore. They have to just be in the lobby and come maybe once every month. That just doesn't work for the person who called.
Have you ever heard of that? And should I send them to someone in your shop?
MARGARET GIRARD: Please always send us any complaints you have. We have a complaint portal and also our email is up there.
ATTENDEE: That is a strange policy by a federal agency. Isn't it? You could have job site and job coach only one day a month or something? You can't come every day. He has been there with his job coach for ... (Off mic).
SPEAKER: I will also say, I think you should reach out to AbilityOne and Chai Feldblum. They are doing a whole big push on how they are modernizing AbilityOne and moving toward greater integration. So, certainly, support you bringing it to DOJ Civil Rights Division. But I also think, raise it with Chai. She should be aware of it.
(Applause).
MARGHARET GIRARD: Thank you so much.