by Talley Wells
Fifteen years ago, when Justice Ruth Bader Ginsberg announced the decision of the United States Supreme Court in Olmstead, it was immediately clear it would become the most important legal victory for people with disabilities in American history. Yet, little changed in the first years after the decision.
The Supreme Court required Georgia, and each of the other states, to provide people who were confined in institutions equivalent supports in the community. However, because of the complexity of this transformation, the Court said that states could create and carry out plans for transitioning from institutions to the community with reasonably-paced moving waiting lists.
This caveat resulted in a lot of planning and very little changing. Georgia formed commission after commission to study how the State would make changes to comply with Olmstead. But it took little action. Real change did not begin to occur until after a series of Atlanta newspaper articles brought attention to terrible incidents at Georgia's state-run psychiatric hospitals. In their 2007 "Hidden Shame" series for The Atlanta Journal Constitution, Allen Judd and Andy Miller wrote that 115 people died under suspicious circumstances in the state hospitals over a five-year period. The problems were linked to overcrowding and poor care. The series began with the story of Sarah Crider, who was a seventh grade girl who died from lethal constipation caused by her medications.
Three months after the first "Hidden Shame" article, the United States Justice Department began an investigation of the state hospitals. The following year the Justice Department sent Governor Sonny Perdue an open letter with findings from its first investigation. It found that incidents at the hospitals were "serious, recurring, and frequently result[ed] in grave harm."
Many disability advocates believed that the Justice Department would force Georgia to finally comply with Olmstead. These advocates were disappointed in January 2009 when the Justice Department and Georgia reached a settlement that did not include Olmstead. Instead, the settlement required Georgia to invest significant resources into the hospitals to ensure that patients were safe and secure. Due to the limited resources of the State, this likely meant that the settlement would actually take from community supports to pay for the changes needed in the hospitals.
Rather than simply accepting the settlement, a Georgia mental health advocate named Cynthia Wainscott sent a letter to the judge asking him not to allow the settlement. Wainscott had gotten leading advocates from across the State to sign on to the letter. Since there were only two parties to the dispute in front of the judge, it was unlikely the letter would have an effect.
It did. The judge ordered briefs to be filed and ultimately decided not to allow the settlement.
A tense period of almost two years followed with Georgia, the Justice Department and disability advocates preparing for a major trial. Despite this tension, and contrary to what happens in many lawsuits, this was also a period of remarkable (if guarded) communication between advocates and state leaders.
Another transformation took place during this time. The US Justice Department, under President Barack Obama decided to make Olmstead a key priority of its Civil Rights Division. Georgia became a focal point for this transformation. This meant that the Justice Department moved away from what it had agreed to in the settlement and prepared for a trial in which it would put Olmstead at the center of what it was demanding. In mid-2010, US District Court Judge Charles Pannell made clear to the parties that they had to settle by October 2010 or there would be a trial. On the eve of trial, the parties reached a final settlement that at the time was the most far-reaching Olmstead settlement in the country.
Georgia agreed that it would enable every person with a developmental disability living at one of the Georgia Regional Hospitals to transition back into the community. It would also provide supports and housing to ensure that 9,000 people with diagnoses of severe and persistent mental illness could live in the community rather than in institutions or other inappropriate settings. The settlement was scheduled to last from October 2010 through July 2015. In the four years since the settlement was signed,
Georgia has had considerable success in carrying out the mental health part of the settlement. Click to Tweet this!
It has had more mixed results with the developmental disabilities part of the settlement.
For people with mental illness, Georgia has created a robust and wide array of services, including 1,400 housing vouchers, Assertive Community Treatment teams, crisis centers and employment. It has closed state hospitals in Rome and Thomasville and closed much of the hospital in Milledgeville.
Georgia has begun the transition of all people with developmental disabilities out of the state hospitals but it has halted the process by agreement between the Justice Department, Georgia and the Independent Reviewer due to significant problems that arose.
In her April 2014 report to the Court, the Independent Reviewer, Elizabeth Jones stated, "Additional time is required for [DBHDD] to finalize its plans for the reform of the system of supports for people with developmental disabilities including the implementations of [Medicaid] Waiver amendments; the restructuring of responsibility and authority at the regional level; the design and implementation of intensive support coordination for medically fragile individuals; the recruitment and retention of provider agencies with the requisite expertise; and the sustained development of sufficiently rigorous monitoring and oversight strategies. Each of these reform efforts is critical to the health, safety, habilitation and integration of the individuals affected by this settlement."
Georgia is supposed to finalize its plan for complying with the Developmental Disabilities Section of the settlement by the end of June 2014 and publish the plan on the Internet on July 21, 2014.
While the Justice Department Settlement has captured the attention of the State and many Olmstead advocates, it is critical to note that the settlement only impacted a subset of Georgians who have Olmstead rights. The settlement did not cover Georgians in nursing facilities or children with disabilities. Also, it did very little to diminish the enormous waiting list for Medicaid Waivers for people with developmental disabilities. In fact, Georgia added between 500 and 1,500 Medicaid Waivers per year in the four years prior to the settlement compared with approximately 250 per year during the settlement.
Thus, while little happened at first after Olmstead, progress is beginning to be made. Still, we have much further to go.
Talley Wells is the director of the Disability Integration Project at Atlanta Legal Aid Society. Wells advocates for housing and supports in the community on behalf of clients with disabilities who are confined in Georgia institutions, nursing homes or at risk of institutionalization of the Supreme Court's Olmstead Decision and ensuring compliance with the Americans with Disabilities Act (ADA).