Spring 2012 Newsletter: Court Decisions and Settlements

Agreement between DOJ and Virginia is Intended to Ensure the Commonwealth’s Compliance with the ADA and Olmstead

On January 26, 2012, the Department of Justice (DOJ) reached a settlement resolving their investigation into whether people with intellectual and developmental disabilities in Virginia are being served in the most integrated settings appropriate to their needs. The Department filed the action in the federal district court in Richmond, Virginia and asked the Court to enforce the settlement.

The Agreement has two primary goals. One is to prevent the unnecessary institutionalization of individuals with developmental disabilities who are living in the community, including thousands of individuals on waitlists for community-based services. The other, equally important goal is to ensure that people who are currently in institutions - at the Commonwealth's training centers or in other private but state-funded facilities - have a meaningful opportunity to receive services that meet their needs in the community.

The Commonwealth will increase opportunities for these individuals to receive quality services in the community by creating approximately 4,200 home and community-based waivers. Waivers allow the states to pay community providers for services to people who are eligible to receive those Medicaid-funded services in an institution. The 4,200 waivers will be created over a ten year period. Almost 3,000 of these waivers will be targeted to individuals with intellectual disabilities on the waitlist or youth with intellectual disabilities in private facilities; another 450 waivers will be targeted to individuals with non-intellectual developmental disabilities on the waitlist or youth in private facilities; and another 800 waivers will be targeted to individuals choosing to leave the training centers. An additional 1,000 individuals on waitlists for community services will receive family supports to help provide care in their family homes or their own homes.

The Commonwealth will also create a comprehensive community crisis system, including a hotline, mobile crisis teams, and crisis stabilization programs, to divert people from unnecessary institutionalization or other out-of-home placements. The Commonwealth will implement an "Employment First" policy to create work opportunities for individuals with developmental disabilities. The Agreement also creates an $800,000 fund for housing assistance to help people with developmental disabilities live independently. Finally, the Agreement requires a strong quality and risk management system to ensure that community-based services are safe and effective. An independent reviewer will assess whether the Commonwealth has met the goals of the Agreement. The full settlement agreement can be found online.

Department of Justice Informal Settlements

The Department resolves numerous cases without litigation or a formal settlement agreement. In some instances, the public accommodation or state or local government promptly agrees to take the necessary actions to achieve compliance. In others, extensive negotiations are required. Following are some examples of what has been accomplished through informal settlements.

An individual who is hard of hearing complained that a Virginia county court failed to provide him with a working assistive listening device for a court appearance. The court agreed to test its assistive listening system every six months to ensure its functionality and compensated the complainant $500.
Two inmates who have spinal cord injuries and a third who also uses a wheelchair complained that a Maryland county detention center had inaccessible showers and failed to provide adequate medical supplies to meet their needs. Although the three had subsequently been released, the center installed grab bars and provided a bench in the shower. The center also agreed to adopt and implement an ADA grievance procedure for inmates and visitors and appoint an ADA Coordinator to address compliance issues.
An individual who has myasthenia gravis complained that the outpatient center of a Maryland hospital refused to provide her scheduled medical services because she uses a service animal. The hospital agreed to adopt and implement a policy permitting service animals in its facilities. The hospital also agreed to train staff on ADA requirements and compensate the complainant $5,000.
An individual who is deaf complained that a fast food chain restaurant in Pennsylvania refused to take his written food order at the drive through window. The restaurant placed picture menus at the drive through window and at interior cash registers to be given to customers upon request, placed pen and paper at drive through windows, trained staff on serving customers with disabilities, agreed to take corrective or disciplinary action against any employee who does not comply with its accessibility policy, and paid the complainant $1,000.
An individual with a mobility disability complained that a Virginia shopping center lacked an appropriate number of accessible parking spaces. The shopping center installed two accessible parking spaces, including one that is van-accessible, and installed a curb ramp connecting those spaces to the facility's entrance.
An individual who is legally blind complained that he was not provided with the testing accommodations that had been approved in advance for a national occupational licensing exam. The national organization that administers the exam agreed to send a letter to applicants with disabilities confirming the accommodations that have been approved by their relevant state jurisdiction, permit them to schedule their exams within two days of receiving the letter, correct any problems in obtaining the approved accommodations on the day of the exam before the exam starts, and resolve any other unanticipated obstacles on the day of the exam. The organization also paid the complainant $16,000.
An individual who uses a wheelchair complained that the entrance to a Pennsylvania doctor's office was inaccessible. The office installed a ramp at a secondary entrance used by employees, removed an "employees only" sign from that entrance, and agreed to keep it unlocked during business hours.

HHS Settles Americans with Disabilities Act Allegations

Town of Simsbury Connecticut Agrees to Modify Policy for Children with Diabetes Attending Summer Camp

Title II of the Americans with Disabilities Act of 1990 prohibits discrimination on the basis of disability by public entities. The U.S. Department of Health and Human Services (HHS) Office of Civil Rights (OCR) is the designated agency that oversees compliance with Title II with respect to state and local governments that administer services, programs, or activities related to social services and health care.

OCR has entered into a voluntary resolution agreement with the Town of Simsbury, Connecticut, mandating that the town recreation department adopt a policy on diabetes management for children attending its summer camp program.

The agreement follows an OCR investigation into a complaint filed by a father on behalf of his eight year old daughter, alleging that the town failed to provide reasonable modifications to its summer camp program to allow camp staff to administer blood glucose testing and, if necessary, provide diabetes-related care to the child participating in the program.

Under Title II of the Americans with Disabilities Act (ADA), unless a public entity can demonstrate that making a modification would fundamentally alter the nature of a service, program or activity, the entity must make reasonable modifications in policies, practices, or procedures when such modifications are necessary to avoid discriminating against a person based on a disability.

“As we enter summer camp season, parents and guardians should know that providers of public programs, services and activities cannot screen out or exclude children because of disabilities, including diabetes,” said OCR Director Leon Rodriguez. “State and local governments may have to modify their policies and provide certain services to ensure that children with diabetes can fully access programs.”

The resolution agreement resolves the complaint, and the Town of Simsbury has agreed to revise its policy to comply with Title II requirements, conduct an assessment of the needs of children with diabetes entering its summer camp programs on a case by case basis, and work with families to provide reasonable modifications for children requiring diabetes-related care while attending camp programs.

The Resolution Agreement can be found on the OCR website. If you think you are being discriminated against in a government health care or social services program, activity, or service because of a disability, you may file a complaint with OCR .