S. HRG. 112–921 OLMSTEAD ENFORCEMENT UPDATE: USING THE ADA TO PROMOTE COMMUNITY INTEGRATION HEARING OF THE COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS UNITED STATES SENATE ONE HUNDRED TWELFTH CONGRESS SECOND SESSION ON EXAMINING AN UPDATE ON OLMSTEAD ENFORCEMENT, FOCUSING ON USING THE AMERICANS WITH DISABILITIES ACT TO PROMOTE COM- MUNITY INTEGRATION JUNE 21, 2012 Printed for the use of the Committee on Health, Education, Labor, and Pensions ( Available via the World Wide Web: http://www.gpo.gov/fdsys/ U.S. GOVERNMENT PUBLISHING OFFICE 93–182 PDF WASHINGTON : 2015 For sale by the Superintendent of Documents, U.S. Government Publishing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS TOM HARKIN, Iowa, Chairman BARBARA A. MIKULSKI, Maryland MICHAEL B. ENZI, Wyoming JEFF BINGAMAN, New Mexico LAMAR ALEXANDER, Tennessee PATTY MURRAY, Washington RICHARD BURR, North Carolina BERNARD SANDERS (I), Vermont JOHNNY ISAKSON, Georgia ROBERT P. CASEY, JR., Pennsylvania RAND PAUL, Kentucky KAY R. HAGAN, North Carolina ORRIN G. HATCH, Utah JEFF MERKLEY, Oregon JOHN MCCAIN, Arizona AL FRANKEN, Minnesota PAT ROBERTS, Kansas MICHAEL F. BENNET, Colorado LISA MURKOWSKI, Alaska SHELDON WHITEHOUSE, Rhode Island MARK KIRK, Illinois RICHARD BLUMENTHAL, Connecticut PAMELA J. SMITH, Staff Director, Chief Counsel LAUREN MCFERRAN, Deputy Staff Director FRANK MACCHIAROLA, Republican Staff Director and Chief Counsel (II) CONTENTS STATEMENTS THURSDAY, JUNE 21, 2012 Page COMMITTEE MEMBERS Harkin, Hon. Tom, Chairman, Committee on Health, Education, Labor, and Pensions, opening statement ............................................................................... 1 Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming, opening statement .............................................................................................................. 2 WITNESSES—PANEL I Perez, Thomas E., Assistant Attorney General, Civil Rights Division, U.S. Department of Justice, Washington, DC ............................................................ 2 Prepared statement .......................................................................................... 5 Claypool, Henry, Principal Deputy Administrator, Administration for Commu- nity Living, U.S. Department of Health and Human Services, Washington, DC .......................................................................................................................... 10 Prepared statement .......................................................................................... 12 WITNESSES—PANEL II Landgraf, Rita M., Secretary, Delaware Department of Health and Social Services, New Castle, DE .................................................................................... 22 Prepared statement .......................................................................................... 24 Baugh, Zelia, Commissioner, Alabama Department of Mental Health, Mont- gomery, AL ........................................................................................................... 32 Prepared statement .......................................................................................... 34 Thornton, Sr., Ricardo, Former Resident of Forest Haven, Washington, DC ..... 40 Prepared statement .......................................................................................... 42 ADDITIONAL MATERIAL Statements, articles, publications, etc.: National Disability Rights Network ............................................................... 55 Letters: ADAPT Community .................................................................................. 56 Judge David L. Bazelon Center for Mental Health Law ....................... 63 VOR ............................................................................................................ 65 (III) OLMSTEAD ENFORCEMENT UPDATE: USING THE ADA TO PROMOTE COMMUNITY INTE- GRATION THURSDAY, JUNE 21, 2012 U.S. SENATE, COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS, Washington, DC. The committee met, pursuant to notice, at 9:29 a.m. in room SD– 430, Dirksen Senate Office Building, Hon. Tom Harkin, chairman of the committee, presiding. Present: Senators Harkin, Franken, and Enzi. OPENING STATEMENT OF SENATOR HARKIN The CHAIRMAN. The Senate Committee on Health, Education, Labor, and Pensions will come to order. I apologize to everyone, but because of votes on the floor, we had to move this up half an hour. The first vote is at 11:00, so we will have to close this down right around 11:10 or 11:15 so I can make that first vote. Then we just have a whole bunch of votes after that, so we will not be able to come back. I am going to ask everyone to cut their statements short, so we can at least have some discus- sion between now and 11 o’clock. The title of this hearing is, ‘‘Olmstead Enforcement Update: Using the ADA to Promote Community Integration.’’ This hearing follows up on a similar hearing that we held in 2010. Tomorrow, we mark the 13th anniversary of the U.S. Supreme Court’s landmark decision in Olmstead, holding that the civil rights of people with significant disabilities are violated when people are unnecessarily segregated from the rest of society. The Olmstead de- cision was a critical step forward for our Nation, following in the tradition of cases like ‘‘Brown v. Board of Education.’’ When Congress passed the ADA in 1990, we described the isola- tion and segregation of individuals with disabilities as a serious and pervasive form of discrimination. In Title II of the ADA, which proscribes discrimination in the provision of public services, we specified that, ‘‘No qualified individual with a disability shall, by reason of such disability, be excluded from participation in, or denied the benefits of, a public entity’s services, programs, or activities.’’ In Olmstead, the Court held that unnecessary institutionaliza- tion of individuals with disabilities constitutes discrimination, and that the two women plaintiffs had a right to be provided commu- nity-based options. (1) 2 We will hear today from leaders at the Department of Justice, and the Department of Health and Human Services; also a panel that includes officials from Delaware and Alabama. And a long- time self-advocate leader from the District of Columbia who will speak from personal experiences about life in an institution and contrast that with his life living in the community. I yield to Senator Enzi. I cut my statement short because we only have an hour and a half this morning. OPENING STATEMENT OF SENATOR ENZI Senator ENZI. I know and I appreciate it. I appreciate the passion that you have for this, and the enthu- siasm, and the great panels we are going to have today. The CHAIRMAN. I appreciate that very much. I want to publicly thank Senator Enzi for all of his great work in this area too. This has been a great non-partisan, bi-partisan issue ever since ADA, and we approach it in that same pattern again today. Our first panel is Mr. Tom Perez, Assistant Attorney General for Civil Rights in the U.S. Department of Justice. He has spent his entire career in public service, first as a career attorney at the Civil Rights Division, and then as Assistant Attorney General for Civil Rights at the Justice Department, and later as Director of the Office for Civil Rights at the U.S. Department of Health and Human Services. He is no stranger up here. He was Special Coun- sel to the late Senator Edward Kennedy, who was a former Chair, along with Senator Enzi of this committee. Joining Mr. Perez on the first panel is Mr. Henry Claypool, Prin- cipal Deputy Administrator of the Administration for Community Living at the U.S. Department of Health and Human Services, a senior advisor to the Secretary on disability policy. Again, long ex- perience; 25 years of experience developing and implementing dis- ability policy at the Federal, State, and local levels. All of your statements will be made a part of the record in their entirety, and so we will start with Mr. Perez and Mr. Claypool. If you could sum it up in 5 to 7 minutes, I would sure appreciate it. Mr. PEREZ. I sure will. The CHAIRMAN. Tom, welcome back. STATEMENT OF THOMAS E. PEREZ, ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC Mr. PEREZ. It is an honor to be here, Mr. Chairman and Senator Enzi. It is an honor to be here with both of you, and with this com- mittee, and with my friend and colleague, Henry Claypool, and Sec- retary Landgraf, and other leaders throughout the country. The Court’s ruling in Olmstead has often been called the ‘‘Brown v. Board’’ of the disability rights movement. As you know, as you just stated, the Supreme Court in Olmstead recognized for the first time that the civil rights for people with disabilities are violated when they are unnecessarily segregated from the rest of society. When I became Assistant Attorney General, I identified Olmstead enforcement as one of our top priorities. Consistent with 3 the administration’s ‘‘Year of Community Living,’’ in the last 3 years the Division has been at the forefront of ADA enforcement involving the unjustified isolation of people with disabilities, and taken an active role in more than 40 cases in 25 different States. We have also significantly expanded our collaborations with other Federal agencies including HHS and my friend Henry, the Department of Housing