What the New DOJ Settlement Means for Georgia

The future of hundreds of Georgians with intellectual and developmental disabilities who reside in state facilities grew just a bit clearer in June when the Department of Justice (DOJ) and the State cobbled out an extension to solve a struggle that’s been ongoing since 2010.

The most recent agreement allows Georgia two more years to address issues that impede the progress of moving citizens with disabilities into community or home settings. The new deadline is intended to create more support systems that will not only make transitioning easier, but will also ensure that individuals who do transition are able to draw on a range of resources. The extension largely addresses the same issues the State faced when it was given its initial deadline of 2015.

“There were not enough support services to serve people in the community, and the State needed to rebuild that system,” explains Talley Wells, director of the Disability Integration Project for the Atlanta Legal Aid Society. “It was extremely slow. When the State didn’t meet that side of the agreement, the State, the DOJ and friends of the court [groups supportive of the settlement] went back and forth about the level of detail and requirements needed to extend the settlement to ensure the State meets its obligations.”

The extension is just the latest development in a story whose roots go back 17 years, to the day in June 1999 when the US Supreme Court ruling known as the Olmstead v. L.C. (Olmstead) decision confirmed the rights of adults with disabilities to live in their communities. But despite that mandate, the State of Georgia did little to make transitions a reality for people with disabilities. In fact, Wells pointed out, Olmstead was not actually implemented, and in some cases, hospitals became places of abuse, neglect and death instead of support and care.

When an investigation by the Atlanta Journal-Constitution in 2007 revealed more than 100 people died in the state’s care, the DOJ and the State conferred with experts in the disability community to address the serious problem. It took a year of negotiating, and in 2010, the DOJ and the State found common ground for implementing Olmstead’s directive, including moving people with disabilities from institutions to community-centered environments. The goal was to complete those directives by 2015.

During the intervening years, some progress was made, particularly in the mental health arena, Wells points out. About 2,000 housing vouchers were issued to allow people to move into community and home settings while pursuing recovery treatment. Peer-support workers were trained to offer follow-up and resources.

“Georgia has been very successful with parts of the settlement agreement, particularly on the mental health side,” said Wells.

However, many adults with developmental disabilities have not fared as well. As the 2015 deadline approached, more than 250 people still resided in state facilities. The biggest hurdle, according to Georgia’s Commissioner of Behavioral Health and Developmental Disabilities Frank Berry, was the lack of strong support networks for those who transitioned into the community, a problem cited as the cause of several deaths.

“Everyone was in agreement about the need for a moratorium because of the tragedies that occurred,” said Wells. “Since the State stopped transitions, there has only been a trickle of people moving out of the state hospital in Augusta.”

With the issue of support networks still to be addressed, the State failed to meet the requirements of the 2015 deadline. During the last year, the DOJ has been working with Georgia to establish new goals and deadlines to make the State compliant. One of the stumbling blocks has been Georgia’s contention that specifics of how those goals will be met did not need to be part of the agreement, explained Wells.

“However, the DOJ and other friends of the court said they did,” said Wells. “It’s important to have the specifics about the infrastructure and other details in place to show that people not only got out [into the community] but were also successful. And that’s taken a long time. It’s not clear what mechanisms were going on to cause that; as you move further into litigation mode, communication becomes less. But they [Governor Nathan Deal’s office] have been very involved in ensuring that the process moves forward. I think it’s important that the settlement agreement concludes during his term.”

Before the latest extension, it appeared that the State might wind up back in court, on trial for its lack of compliance. “They’d be given one last extension, and it was clear it would be difficult to get another,” said Wells. “But as so often happens right before you get to court, the parties settled.”

The New Agreement
The initiatives laid out in the new agreement look promising, said Wells.

“It is our expectation that most of the people still in a hospital setting will return to the community,” he said. “There is a mechanism in place to evaluate if the person is capable of living in the community, and there’s a reformation of support coordination, adding front-line people who will coordinate that support. They’ll be in touch with case workers once a month. And a strategic plan for crises services should be in place by 2017.”

Those front-line support personnel will have their caseloads capped at 40 and will be required to perform at least one in-person visit each month. The agreement also states that a maximum of four individuals will be permitted to reside in crisis respite homes, and that a more detailed, thorough process of investigating serious incidents will be enacted.

In an interview published in the Atlanta Journal-Constitution, Alison Barkoff, director of advocacy at the Bazelon Center for Mental Health Law in Washington, was quoted as saying, “It’s a really serious commitment from the State to make sure the community system can support all people with developmental disabilities.”

Waivers
But despite the promises of the new agreement, many of the issues being addressed are not new, said Dawn Alford, public policy director for the Georgia Council on Developmental Disabilities (GCDD).

“I’m concerned about those who are in the community and still waiting for services,” she said. “For instance, between June 30, 2016 and June 30, 2018 the State will be required per this agreement to provide a minimum of 675 Medicaid waivers. But the waiting list as of March 31 was 8,457. So 675 does not even address 10% of the waiting list. At that rate, it would take 42 years just to end the current waiting list that grows longer every quarter. And Georgia is not unique in this respect; other states have long lists, too. Surely any progress is good, but it’s also unacceptable that we have this waiting list that needs to be addressed.”

Medicaid waivers can be critical for adults with disabilities who want to live in community-based environments. The federal program mandates that someone who, for example, requires assistance with daily living activities receive them in an institutional setting, such as a nursing home. But if adults opt to receive those services at home, the federal government does not require states, who administer the programs, to provide waivers.

“Because each state can decide if or how to provide those home or community-based services, you end up with people who want the care but aren’t able to get it,” said Alford.

Though the settlement revolves around a multitude of complex issues, Alford acknowledges that headway is slowly being made.

“Any progress is better than no progress,” she said. “It is positive movement in the right direction, but I wouldn’t go so far to say we’re winning.”

Wells predicts that having a new agreement in place will mean more progress is on the horizon. “I’m very hopeful that things are going to progress more rapidly now,” he said. “The State has put some good leadership in place around transitions, and it does feel that the pace is picking up. But all of us need to work with the State to ensure this agreement is successful. It’s about people’s lives.”

The Settlement and GNETS
With news that the DOJ agreed to give Georgia more time to address the issue of citizens housed in state facilities, advocates are hopeful that progress will finally be made. But the news is not as good for parents whose children are part of the Georgia Network for Educational and Therapeutic Support (GNETS).

Last July, the DOJ sent the State a letter that outlined a myriad of issues with the GNETS program and demanded that changes be made so the program falls in line with the standards of the Americans with Disabilities Act (ADA). As it currently exists, the program provides inadequate and unequal education for children with behavioral disabilities.

“The DOJ letter basically said, ‘You’re the Olmstead state!’ but it was still only making services available in segregated and inferior settings,” said Leslie Lipson, an attorney with the Georgia Advocacy Office. “It’s been almost a year, and the State has made almost no real progress about coming into compliance.”

At more than 40 years old, the program has changed very little since its inception. “It’s very antiquated,” said Lipson. “It’s still a totally segregated, inferior education support system that serves about 5,000 students across the State. And every day we get phone calls from parents desperately trying to get their kids out of these places.”

Parents and advocates are appalled that children are being warehoused in facilities without access to resources like learning labs or computers and, in some cases, even teachers. But they’re equally concerned about the downward spiral being in GNETS can create.

“This is also a program with racial disparity,” said Lipson. “Nationally, there’s a theme called disproportionality in special education – the over-identification of African American students as having emotional disorders but an under-identification of having learning disabilities. You’ll also see that more African American boys are being warehoused away from the good things going on in our educational systems. From there comes the idea of the school to prison pipeline because, sometimes, the disability-related behavior becomes criminalized.”

As an example, Lipson offers the scenario of a child who is sensory defensive. “If you put your arms around him, he’ll flail and turn away because he feels his space has been invaded. Now he’s in a segregated place that has a lot of restraints, and it soon becomes an issue of battery instead of disability.”

“The issue has become so pressing that GCDD plans to study the ramifications as a part of its five-year strategic plan,” said Executive Director Eric Jacobson. "The US Department of Education and the Office on Special Education have done research on kids diagnosed with disabilities having a higher proportion of dropping out of school and ending up in the prison system because we’ve misdiagnosed them and put them in systems like GNETS,” he said. “These are kids with behavioral or emotional issues, often many African American males, who end up going into the prison system.”

Several groups have organized to demonstrate their concern about GNETS and to support major changes by the State. Parent to Parent of Georgia (p2pga.org) has built a website with educational materials that have been used to inform lawmakers about the problems.

The Coalition for Equity in Education is another that has requested meetings with the State to discuss solutions, but so far, those requests have been denied. The DOJ, however, has to be willing to accept input from advocates and stakeholders.

“We’ve had ongoing meetings with the DOJ to talk about what the remedies are,” said Barkoff. “Our coalition has been doing a lot of thinking about ways we’d support a resolution, and we have shared our thoughts on that. But when we asked the State for the same consideration, it declined. We sent a letter first in November that got no response, then we sent another in April and were just recently told they weren’t interested in meeting with us. That was disappointing. The interested and engaged stakeholders absolutely need to have a voice.”

At this time, advocates envision three possible next steps: Georgia could settle the issues to the satisfaction of the DOJ; the State could cease negotiating, and the DOJ could initiate litigation; or negotiations could stop without any litigation. Barkoff is hopeful that a strong settlement agreement will be reached.

“We have been talking to the DOJ for almost a year and saying, ‘If you aren’t able to reach a settlement, then the next step is litigation,’ ” she said. “We are still at the wait-and-see point, but our coalition has been active on many fronts, and we hope to be at a pivotal point soon.”

If the DOJ does not start legal proceedings against the State, the possibility exists that the Coalition could do so on its own. But Barkoff says the current approach is to give the two parties a bit more time.

“There is a lot of momentum right now, and we are cautiously optimistic,” she said. “We do feel strongly that the State resolve this and have a strong settlement. But meanwhile, the real tragedy is that we’ve had another school year go by in the lives of these kids.”

Possible Next Steps:
Georgia could settle the issues to the satisfaction of the DOJ.
The State could cease negotiating and the DOJ could initiate litigation.
Negotiations could stop without any litigation.

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