Bark’s Bytes #32 | Olmstead Plan-A Toe Hold

Published November 24, 2015

On September 29, 2015, U.S. District Court Judge Donovan W. Frank approved the State’s August 10, 2015 Olmstead Plan and is reviewing the October 9, 2015, Olmstead Workplans (hereinafter “Workplan”) submitted by the Olmstead Subcabinet. All three documents can be viewed at:

http://bit.ly/MNOlmsteadPlanINFO

Olmstead Plan Overview

The 8/10/15 version is a 152-page document that offers definitions, visions, achievements, and measurable goals for each of the 13 specific domains called-out in the Olmstead Plan. Although improved from previous drafts, I disagree with the Court’s approval because:

• its data and measurement goals are either missing, confusing, or inaccurate;
• there is no detail on how case management will be reformed to ensure informed choice and person-centered planning happen for each recipient;
• elements of the plan are contrary to individual choice; and
• the plan implies that no new funding is needed.

This version was approved though, so now we move to what does this mean? My thoughts in this editorial will be limited to the following three topics:

1. Assurances from Commissioner Jesson’s September 16, 2015 letter to Court that references pages 535 – 540 of the Dispute Resolution Plan issued by the Olmstead Implementation Office.
2. Relevant statements from the Court Decision.
3. Employment issues found on pages 21 – 28 of the Workplan.

Commissioner Jesson’s Letter

I have found the Commissioner to be a deliberate communicator and her three-page letter in response to the Levy Amicus Brief included a number of notable points that included:

• A bold statement that “…government and service providers begin listening to individuals about what is important to them in creating or maintaining a personally-valued community”; and we need to hold DHS to the expectation of listening to individuals and redirect policy discussions that do not honor personal values (e.g., Employment First Policy).
• The term “productive employment” and not “competitive-integrated employment” was used when referencing the Plan’s vision statement; a term more consistent with individual choice.
• Acknowledgement that:
  • people with disabilities should receive community-based services when the affected individual does not oppose it;
  • segregated settings will be the preferred choice for some; and
  • the Plan is not about eliminating certain service options or closing specific facilities.
• A dispute resolution for “individuals who believe that they have not received services or supports in accordance with the principles set forth in Olmstead v. L.C.” (page 537 of the dispute resolution process plan). In offering this “meaningful” protection the Commissioner has essentially promised no harm to people with disabilities and the Court made a point of urging the State to “…remain vigilant to the public’s fears and concerns. Individual choice must remain a guiding factor in the delivery of community services and supports. The State must continue to assess its goals and priorities to ensure that they align with the goals and priorities of individuals with disabilities”.

In my view all of these concepts must be woven into the Workplan to engage stakeholders in the collaboration needed for success. Further, broader representation than the MN Employment First Coalition is needed on the employment section of the Workplan to include clients and providers of centered-based services. If I have understood the Commissioner’s declarations accurately, the real work of the Olmstead Plan has just begun and all stakeholders need to remain vigilant to ensure these foundational assurances are reaffirmed during each annual review process and any subsequent plan amendments.

Court Decision

The Court’s 15-page decision has a number of subtle nuances and statements that I believe are worth mentioning.  First, it is unusual that the Court’s final order would even mention an Amicus Brief much less dedicate two pages of reminders to “…ensure that individual choices are honored and respected.” Second, footnote 8 cites the Amicus Brief of Ivan Levy establishing it as part of the Court’s file; that brief references Merrick multiple times and the order by the Court supports many of its arguments. Third, the Court acknowledges that many “…individuals with disabilities in this state value living and working alongside other individuals with disabilities…”, emphasizing that “…the Olmstead decision is not about forcing integration upon individuals who choose otherwise or who would not be appropriately served in community settings”, and the “…goal of placing individuals with disabilities in the most integrated setting must be balanced against what is appropriate and desirable for the individual.” Finally, and here is where the buck stops, the state “…must also allocate its resources and funding according to the informed choices of those whom the Olmstead Plan is meant to serve.” In summary, the following statements are true if I have interpreted the Court’s reminders accurately:

• Not honoring informed choice is any easy dispute to bring back to the Court;
• It is okay for people with disabilities to live and work alongside others with disabilities;
• Integration cannot be forced on people with disabilities and must be balanced with what is appropriate; and
• Funding cannot be taken away from service options chosen by individuals with disabilities.

The Workplan

The State’s 79-page draft workplan dated 9/22/15 has been submitted to Magistrate Judge Becky R. Thorson who will make recommendations for the Court to consider before approval. My comments here are limited to the six employment strategies found on pages 22 – 28 of the document.

Strategy 1:  Implement the Employment First Policy (EFP)

I have refuted the EFP many times and won’t belabor my reasoning again other than to say it is fundamentally flawed and does not respect informed choice. Therefore, I am astounded to see it cited in the Workplan and even more struck that the Minnesota Employment First Coalition is listed as a “partner.” An element of MNAPSE, according to an 11/6/15 visit to their webpage, this coalition is comprised of only six like-minded providers, of which two are residential providers, along with the U of M, and Arc Greater Twin Cities. Not exactly a coalition that represents the 20,000 clients served by the 100+ members of Minnesota Organizations of Habilitation and Rehabilitation (MOHR). As the Executive Sponsors, Jeremy Hanson-Willis and Jennifer DeCubellis need to add representatives of MOHR to match the number from MNAPSE if a balanced Workplan is to be developed that will engage all stakeholders.

Day Training & Habilitation (DT&H) programs have not been determined “segregated” yet in the DHS response to the federal guidelines on defining Home & Community-Based Services (HCBS). Until such time there are no “segregated” DT&H programs and this word should be replaced by center-based throughout the Workplan. Likewise, DT&H providers do not offer “facilities” and this word should be replaced with “programs” throughout the Workplan. Finally, most would agree that developing a framework for informed choice is long overdue and testing should include DT&H programs.

Strategy 2:  Develop an interagency data system to improve measurement of integrated employment

Other than replace “segregated” with “center-based” the only other issue is the difficulty in securing the wage, benefit, and hours worked data on clients hired directly by the business.

Strategy 3:  Reform funding policies to promote competitive, integrated employment

As long as the data gathered supports an “individual’s informed choice for employment” as stated in “Key Activity A”, and representatives from MOHR are included as a partner, this activity should be helpful when DHS gets federal approval for the new Employment Exploration, Employment Development and Employment Support Service waiver options.

Strategy 4:  Develop additional strategies for increasing competitive, integrated employment among people with disabilities

The first revision is adding “to those that want it” to the strategy statement as was done at the Employment Impact Summit cited throughout this Workplan. The focus is on activity within the school systems and needs to include data on why graduating students do not choose competitive, integrated work, the choices made, and longitudinal data on the success of all choices.

Strategy 5:  Implement the Workforce Innovation and Opportunity Act (WIOA) and Section 503

Since the WIOA regulations have not yet been issued, clearly the deadlines for any of these actions will need to be extended. The second bullet under item “B.1” may be an overreach to include people that have already selected programs that use the commensurate wage regulations to pay clients.

Strategy 6:  Implement the Home and Community Based Services (HCBS) rule in a manner that supports competitive, integrated employment

The intent of this strategy is fundamentally wrong and I reject all of its activities until “competitive, integrated employment” is replaced with “individual choice.”

In summarizing my thoughts on this Workplan, until the partners include a better balance of day service providers, clients and/or their families, and some current employers this section should not be approved. It is also lacking the specifics needed to understand how Vocational Rehabilitation Services, State Services for the Blind, and Medicaid funded programs will increase competitive, integrated employment by 19,385 people by 6/30/2020.

Summary

In closing, there is much work to be done on gaining consensus on the work to be done. Still, the Court has given clients an important “toe hold” on this slippery slope called “Medicaid Reform” by making it very clear that the State cannot force integration upon individuals who choose otherwise or who would not be appropriately served in community settings. As providers it is our duty to make sure clients and their families know they can dig in their toes and stop being pushed down the slope to a place they do not want to be and have access to needed resources to make sure their informed choice is honored and funded.