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Delivering on the Promise
Table of Contents

U.S. Department of Justice
[Complete Report: HTML = 179K / PDF = 187K]
Table of Contents ~ Executive Summary
Final Report: Part I ~ Part II ~ Part III ~ Part IV ~ Appendix A

Self-Evaluation to Promote
Community Living for People with Disabilities

Report to the President
on Executive Order 13217

Final Report of the Attorney General

II. The Civil Rights of Institutionalized Persons Act (CRIPA)

1. CRIPA Accomplishments to Date
   1. Hundreds of people have been moved from institutions to community settings as a result of the Department's efforts
   2. The Department has ensured the appropriateness of placement in health care settings
   3. The Department has ensured adequate institutional discharge planning and transition
   4. The Department has ensured that people discharged into the community are afforded safe treatment
   5. The Department has participated as amicus curiae in ADA integration regulation cases involving unnecessary segregation in institutions
2. Barriers to the Full Implementation of Olmstead
   1. The Department's authority under CRIPA is limited
   2. Oversight of community support services is not always adequate
   3. Current federal laws and regulations impose barriers to community living
   4. Some treating professionals are unfamiliar with community-placement alternatives
   5. States are unwilling to risk closure of institutions and loss of jobs
3. Blueprint for Future Action
   1. The Department may recommend expansion of its authority
   2. The Department will increase staff training and information gathering efforts
   3. The Department will increase its outreach and education
   4. The Department will explore ways to address the shortage of community services and supports
   5. The Department will coordinate its efforts with other Federal agencies
   6. The Department will increase coordination among various enforcement components

The right at issue in Olmstead is the right for an institutionalized person to be served in the most integrated setting appropriate to the individual's needs. This right is found in the regulations issued by the Attorney General to comply with Congress's mandate in title II of the ADA that no individual with a disability should be subjected to discrimination by any State or governmental agency. 42 U.S.C. § 12134. Following Congress's explicit directions, the title II provision relevant here, known as the "integration regulation," requires States to "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d) (ADA title II integration provision).

As part of its CRIPA enforcement efforts, the Department conducts investigations of conditions of confinement in nursing homes, psychiatric hospitals, facilities for persons with developmental disabilities, and other health care facilities and, pursuant to the ADA, reviews the appropriateness of placement of individuals in these institutions. The Department also reviews discharging procedures by professionals at facilities and ensures that the care and treatment of individuals discharged to the community is safe and appropriate to meet the individuals' needs. As part of its CRIPA investigations of health care institutions, the Department collects evidence to determine whether there are violations of title II of the ADA, particularly the ADA integration regulation. The Department also enforces other Federal statutes and regulations, such as Section 504 of the Rehabilitation Act, title XIX of the Social Security Act, and various Medicaid programs.

Under CRIPA, the Department may initiate a civil action where there is reasonable cause to believe that a State or political subdivision of a State is engaged in a pattern or practice of subjecting institutionalized individuals to conditions that deprive them of the rights secured by the United States Constitution or Federal laws.

Over the years, the Department has investigated ADA integration regulation violations at 31 institutions for people with developmental disabilities, 11 psychiatric hospitals, 6 nursing homes, and 1 residential school for students with visual disabilities. The Department continues to pursue and has completed cases and investigations in 17 States, the District of Columbia, and the Commonwealth of Puerto Rico. The Department has also filed briefs as amicus curiae in 4 cases addressing the meaning of the ADA's integration regulation in cases involving the unnecessary segregation of people in institutions. See Appendix A for a list of Olmstead work under CRIPA.

1. Hundreds of people have been moved from institutions to community settings as a result of the Department's efforts.

   Hundreds of individuals who were being unnecessarily institutionalized are now living safely in the community with adequate supports and services, as a result of the Department's enforcement of CRIPA and the ADA's integration regulation. For example, in United States v. Tennessee, CA 00-6120, 00-6265, 00-6476 (W.D. Tenn. 1992), the United States alleged that Tennessee maintained unconstitutional conditions of confinement at Arlington Developmental Center (ADC). Following a lengthy trial, the district court ordered the State to develop a comprehensive plan for placing ADC residents into appropriate, quality community placements. Since the time a plan was developed and approved, 63 ADC residents have been placed in the community. Based upon the Department's ongoing monitoring efforts in this case, the majority of the remaining ADC residents will be discharged into the community in the next two years. In another case, two Louisiana facilities for persons with developmental disabilities housed over 1,700 people when the Department began its investigation. The Department worked with the State to transition inappropriately confined people into the community. Today, more than 700 formerly institutionalized persons now live in the community. In Wisconsin, since the Department began its investigation of two facilities for persons with developmental disabilities, more than 650 persons have moved into the community. Similar cases in other States have resulted in the community placement of countless individuals.

   The Department has also successfully argued as amicus curiae that Olmstead and the ADA integration regulation require jurisdictions to serve unnecessarily institutionalized people in the community and that jurisdictions may be required to expand, modify, and revise existing services to do so. See, e.g., Davis v. California Health and Human Services (N.D. Cal. 2000) (residents of a large nursing home must be served in the community where appropriate).

2. The Department has ensured the appropriateness of placement in health care settings.

   The Department conducts regular investigations of health care facilities and reviews the appropriateness of placement of individuals in institutions. It has worked successfully with a number of institutions to identify individuals who would be more appropriately served in the community. The Department then works with jurisdictions to identify required residences, day programs, vocational opportunities, specialized services, medical care, and related services and other supports needed to serve individuals in the community. For example, in United States v. Puerto Rico, Civ. No. 99-1435 (D.P.R.), in late September 2001, the Department will submit a plan to the Federal district court, seeking approval for a person-centered community services plan that creates from scratch a comprehensive community services system for persons with developmental disabilities who currently live in segregated institutions. The Commonwealth has committed to provide individualized assessments for all of the over 200 institutionalized persons and place in the community those who are determined to require placement in a more integrated setting. The plan will provide for assessments, appropriate transition planning and implementation, and creation of the infrastructure of supports and services for that community system that will include housing, transportation, supported employment and/or integrated training opportunities, recreation, case management services, and respite care funds and supports for families who choose to care for such persons at home. As in Puerto Rico, the Department has worked with institutions all over the country to help those facilities identify persons who should be moved to homes in the community.

3. The Department has ensured adequate institutional discharge planning and transition.

   The Department regularly evaluates the discharge-planning processes and policies of the institutions it investigates and ensures that the process of transition from an institution to the community is safe and adequate. In many cases, the Department has found that inadequate discharge planning and transitional services have resulted in placements in inappropriate settings and high rates of readmission to institutions, in violation of Olmstead. For instance, in a case involving a psychiatric hospital in Virginia, the Department ensured that discharge planning began when a person was admitted to the hospital. The hospital strengthened its treatment services to ensure integration of discharge planning into the patient's care plan. Representatives of local community providers participated in patients' treatment in the hospital to ensure smooth transition to a community setting upon discharge. As a result of the Department's work, the facility improved coordination between the hospital and community providers and decreased patient placements to homeless shelters. In a case involving a nursing home in Philadelphia, as a result of the Department's work, the facility now prepares discharge plans upon admission to the nursing home. The plans specify the individualized needs of the residents and how those needs will be met in the community setting. Where appropriate, residents are now transferred to much less restrictive settings such as independent apartments, the homes of family or friends, or other community-based homes. In a case involving D.C. Village, a nursing home in the District of Columbia, when the District of Columbia decided to close the nursing home following litigation with the Department, the Department secured court orders to ensure that transitions to the community would occur safely for residents. Similar cases in many States have resulted in the improvement in the discharge-planning processes in scores of nursing homes, psychiatric hospitals, and facilities for persons with developmental disabilities.

4. The Department has ensured that people discharged into the community are afforded safe treatment.

   The Department also tours the homes of people who are moved from institutions into the community to ensure that placements are safe and appropriate to meet individual needs. For instance, in United States v. Williams, Civ. No. 76-293 (D.D.C.), the Department visits the homes of former residents of Forest Haven, the District of Columbia's now-closed institution for persons with developmental disabilities, to ensure the adequacy of the services being provided. The Department has directed its energies to ensuring that individuals receive adequate protections, services, and supports in the community. Earlier this year, the Department negotiated and filed an extensive and comprehensive remedial plan to help redress deficient conditions and practices within the District's community-based system. An independent court monitor oversees the defendants' compliance. Moreover, the District of Columbia created an independent, nonprofit organization to provide independent monitoring, lay advocacy, and legal representation to all persons with developmental disabilities served in the District's system. The District of Columbia is funding this independent organization with over $31 million over the course of the next 11 years. In similar cases throughout the country, the Department ensures that people moved from institutions to community settings as a result of Olmstead are safe and provided with adequate, appropriate services.

5. The Department has participated as amicus curiae in ADA integration regulation cases involving unnecessary segregation in institutions.

   The Department has also participated as amicus curiae in several cases involving the unnecessary segregation of people in institutions and the meaning of the ADA integration regulation, as described above.

Through the Department's CRIPA work, hundreds of individuals who were unnecessarily institutionalized are now living safely in the community with adequate supports and services. The Department's work under CRIPA, however, can be hampered in several important respects.

1. The Department's authority under CRIPA is limited.

   First, CRIPA only authorizes investigation of institutions where there are patterns or practices of violations of rights. Thus, the Department has no jurisdiction to investigate individual Olmstead complaints under CRIPA.

   Second, the Department's ability to conduct CRIPA investigations is dependent on the cooperation of the jurisdiction being investigated. In the 20-year experience of enforcing CRIPA, the Department has successfully settled the vast majority of cases in which the jurisdiction has given it access to documents and the institution. In cases where access is denied, the Department may have no alternative but to initiate costly and time-consuming litigation.

   Third, CRIPA authorizes the Department to investigate institutions that are operated by, or on behalf of, a governmental authority. Thus, the Department has no CRIPA jurisdiction to investigate purely privately-run facilities.

   Fourth, some States and other political subdivisions of States have resisted the Department's efforts to investigate the services provided to individuals who are moved from an institution into the community. The public entities argue that the Department's ability to enforce CRIPA ends at the brick walls of the institution. Some States and political subdivisions of States in an effort to swiftly implement Olmstead or because of lack of adequate oversight, have placed individuals in the community without adequate supports. These individuals have been subjected to unnecessarily difficult conditions. In some cases, individuals are quickly re-institutionalized or incarcerated because the services appropriate to their needs have not been provided in the community. The Department must have the ability to ensure that the individuals who are moved from the institutions to the community as a result of its law enforcement efforts are safe and getting services appropriate to their needs.

2. Oversight of community support services is not always adequate.

   Some parents and other family members resist the Department's efforts to enforce the integration regulation. They are afraid for the safety of their loved ones if their relatives are moved to the community. These fears are not unfounded, given that some States have not lived up to their responsibilities to inspect conditions of care in the community and the adequacy of services provided to individuals moved from institutions to the community.

   For the Home and Community-Based Program, the largest and most popular program providing [community] services, we must devise reasonable services to ensure that the States fulfill their oversight responsibilities.... Otherwise, we risk the possibility of serious health and safety problems in community-based programs. -- Testimony given during the Sept. 5, 2001, National Listening Session.

   Also, laws requiring quality of care oversight are geared towards institutions, not community-based settings. Although current statutes and regulations do require states to assure CMS that safeguards are in place to protect the health and welfare of home and community-based waiver enrollees, expectations about specific state responsibilities are unclear. For this reason, DOJ strongly endorses HHS' commitment to develop a multi-pronged strategy to address quality of care issues in home and community-based services. See Preliminary Report of Federal Agencies' Actions to Eliminate Barriers and Promote Community Integration.

3. Current federal laws and regulations impose barriers to community living.

   As HHS recognizes in its Report, there are institutional biases in the Medicaid statute itself. For a discussion on this point, see Report of the Department of Health and Human Services on Community-Based Alternatives for Individuals with Disabilities. For example, the Medicaid statute does not provide for reimbursement of family members for in-home care of relatives with disabilities. Families without adequate resources to pay for supports may be faced with institutionalizing individuals who could otherwise be cared for in family homes. DOJ strongly endorses HHS' commitment to establish a Medicaid Community Services Reform Task Force to advise HHS on this and other issues.

   I am a young mother to a child with a disability.... I have been fighting almost non stop with social services in my area to get in home help with my daughter for going on seven months now. Samantha's seizures are sometimes so severe that she quits breathing. She requires about one-sixth the amount of sleep that a typical healthy child does at this age. I spend most of my days and nights so sleep deprived I'm not sure if I'm coming or going. There were two occasions that I passed out from exhaustion and awoke several hours later to a crying baby. That is when I started asking for help. I have yet to receive it. I am not asking for social services to supply someone, I am asking for the funds so I can hire someone who already knows my child's needs and quirks. -- E-mail testimony of Aug. 27, 2001.

   Another barrier to community integration is the shortage of direct care workers to provide services to individuals moved from institutions into the community. These shortages result from a host of complex social and economic factors, including the characteristics of the local job market, local wage rates, differing job requirements and working conditions in community versus institutional settings. Another factor, however, is that there are disparities in compensation between direct care workers in institutional settings versus those in community settings. DOJ strongly endorses HHS' commitment to undertake a national demonstration designed to address shortages of community service direct care workers. See Preliminary Report of Federal Agencies' Actions to Eliminate Barriers and Promote Community Integration.

   This morning, like every other morning, there were thousands of people with disabilities who woke up and wanted to get out of bed but couldn't because there was no one there to help them.... While many factors contribute to this, the main one is simple economics. Because, regardless of the State or region, most community-based service workers are expected to do their jobs at poverty level wages often without health coverage or other employee benefits or with little or no opportunity for career advancement. Not surprisingly, there's an ever increasing shortage of these workers.... This results in turn over rates of 100% among many provider agencies, increased incidences of abuse and neglect and countless instances when people are left, often in their own waste, because their attendants showed up late that day or not at all. The future of community-based services and the very lives of millions of people with significant disabilities, therefore, hinges on our ability to begin to remedy this national crisis immediately.... If we truly value people with disabilities being in the American community, we must value and compensate those who make it possible. -- Testimony given at the Sept. 5, 2001, National Listening Session.

4. Some treating professionals are unfamiliar with community-placement alternatives.

   Olmstead places a lot of responsibility on treating professionals in institutions to assess whether an individual would be more appropriately served in the community. Oftentimes, professionals in institutions are not aware of alternatives available in the community and make recommendations accordingly. This presents a significant barrier for an individual who would like to move from the institution into the community.

5. States are unwilling to risk closure of institutions and loss of jobs.

   A final barrier to fulfilling the goals of the President's Executive Order is that sometimes States or other jurisdictions are reluctant to discharge individuals who qualify for community placement under Olmstead into the community because, eventually, institutional populations will diminish and may result in the closure of the facility. In that case, staff at institutions lose their jobs.

To continue to break down the barriers to persons with disabilities living in institutions to move into the community, the Department is committed to enhancing its enforcement of CRIPA. The Department will continue to devote resources to investigations and litigation, where appropriate, with respect to institutions where individuals are unnecessarily institutionalized. The Department will continue to provide substantial technical assistance to jurisdictions about how to comply with Olmstead. The Department will also continue to participate as amicus curiae in impact institutional litigation where the ADA integration regulation is at issue. Additionally, the Department will take the following specific steps to enhance its ability to enforce Olmstead and help move people from institutions to community settings when appropriate.

1. The Department may recommend expansion of its authority.

   The Department may consider additional mechanisms that would give it greater investigative abilities to address issues arising from community placements and to address allegations of discrimination in purely private institutions.

2. The Department will increase staff training and information gathering efforts.

   The Department will train its staff on the benefits of community placement over institutionalization.

   Department staff will attend national conferences on topics relevant to serving people with disabilities in the most integrated settings appropriate to their needs and collect information on the speakers and attendees to solicit information on leaders in the field. In addition, staff will solicit input from advocacy groups in the field to gather suggested consultants' and experts' names and to alert the Department to private lawsuits where amicus curiae participation by the Department would assist the court in interpreting and applying the ADA integration regulation.

3. The Department will increase its outreach and education.

   To overcome the resistence of some parents and other relatives to the community placements of their institutionalized loved ones, Department staff will increase its efforts to educate parents and other family members concerning the benefits of community placement over institutionalization in large, congregate settings. The Department also will increase efforts to educate individuals at risk of institutionalization on alternatives to placement in facilities. Field trips to successful community placements may help aid the educational process.

   The Department will explore ways to increase training for treating professionals in institutions so that they understand the possibilities of treatment in the community and the alternatives available.

4. The Department will explore ways to address the shortage of community services and supports.

   To address the shortage of direct-care staff available to work in community settings and States' resistence to shrinkage of institutions and the resulting loss of staff positions, the Department will explore ways to transition competent former institutional staff to work in community-placement settings.

   To address the increasing numbers of persons with mental disabilities in the nation's jails and prisons, the Department will explore ways to increase the number of mental health courts across the country. Mental health courts would increase the diversion of persons with mental disabilities from correctional settings to appropriate treatment settings in the community.

   Five times as many people [with mental illness] are incarcerated than are in State mental health treatment facilities. -- Testimony given at the Sept. 5, 2001 National Listening Session.

5. The Department will coordinate its efforts with other Federal agencies.

   The Department of Justice is committed to working with HHS and HUD on the following issues:

   • Aiding HHS in developing its multi-pronged strategy to address quality of care issues in home and community-based services. This strategy includes establishing defined expectations for home and community-based services; assisting states in using the results of CMS quality reviews of community placements; providing technical assistance to states and HHS regional staff in effective systems design or quality improvement strategies; and implementing new quality assurance and improvement systems uniquely suited for services in one's own home.

   • Coordinating with CMS and HUD to take advantage of Federal money available for the costs of housing in the community. The Department will work with HUD to explore ways in which HUD representatives could be included in institutional meetings at which the transition of an individual from an institution to a community is discussed, so that HUD representatives can counsel individuals regarding housing options and assist with obtaining vouchers.

   • Through the Interagency Council on Community Living and the Medicaid Community Services Reform Task Force, working with HHS to reduce barriers to community living and reduce institutional biases in the Medicaid program.

   • Through the Interagency Council on Community Living and the Medicaid Community Services Reform Task Force, exploring the issue of providing support for family care givers.

   • To identify those institutions where the greatest number of qualified individuals are unnecessarily institutionalized, exploring a DOJ database that analyzes the utilization reviews from institutions and ranks those with the highest percentage of reviews that show that individuals do not need the level of care the institution provides.

6. The Department will increase coordination among various enforcement components.

   The Department will explore increasing enforcement coordination among its various components. For instance, Department components can undertake joint investigations that focus on the fraud committed by an institution that accepts Federal money to care for an individual who is unnecessarily institutionalized. The Department's Civil Rights Division and two United States Attorneys Offices have successfully conducted two such joint investigations under CRIPA and Medicaid/Medicare Fraud statutes.

   The Department will also explore enforcement coordination to ensure that States that provide services through contracts with private institutions continue to meet their obligations under Olmstead. At this time, CRIPA only gives the Department jurisdiction to enforce title II of the ADA, which covers institutions run by State and other governmental agencies. The Civil Rights Division will also ensure private institutions meet their obligations under title III of the ADA.

Last revised: April 21, 2002