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(Continued from front page) . . . . But this brings us to a fact about the Olmstead case that is not really understood and yet is critical, I think, to our understanding of the struggles we face today, at least in Georgia. Lois and Elaine both happened to have a label of developmental disability. So, even though they had cycled back and forth through state psychiatric hospitals for years…when the chips were down, the only available residential supports were for people with developmental disabilities, not mental illness.

There are very few residential supports in Georgia for people with mental illness. In many places in the state there are none. There is no excuse for that ---it doesn’t make sense economically, clinically, or from the perspective of human compassion.

I want to focus on the mental health system today because I have asking myself why, despite Olmstead, does it seem that Georgia has not been willing to take community residential supports for people with mental illness seriously: is it because there are people who may be imagining things, afraid of things, saying things that don’t make sense to most of us, people reliving nightmares, people who have emotionally injured, people who thing and say bizarre things at times, bizarre and often wonderful things? Is it true that we accept the status quo at some level still -- that the state may segregate people who behave this way or who are perceived this way? But when the state confines people for awhile and then, after investing enormous amounts of taxpayer dollars in an institutional system that does not work very well, the entire effort is essentially abandoned to the insecurity of a homeless shelter, a marginal personal care home and to the revolving state psychiatric hospital door.

To get to the heart of the matter, we seem to be in a prolonged period, not unlike the era where we said as a society that we had ended racial segregation but we didn’t really move on --- we couldn’t find the energy, the motivation, the outrage to shake loose the habit of segregation. Is that that something like what we are experiencing? Are we in the middle of a period where we can’t really envision a society where the civil right to integration, to live equal, integrated lives actually applies to people with significant physical and mental disabilities?

To me, it seems as if we are always waiting for something. We waited to see if the state would comply with the Olmstead decision, we read a series of shocking stories in the Atlanta paper about deaths and abuse in Georgia’s hospitals, we are now watching to see if the Office for Civil Rights agreement with the state or the Department of Justice agreement with the state will finally make something happen to re-direct funding and create residential alternatives. . . . Do you remember Dr. Martin Luther King’s words on this subject? “For years now I have heard the work “wait.” It rings in the ear of every African American with piercing familiarity. This “wait” almost always meant ‘Never’."

So, on the 10th anniversary of Olmstead, let’s return to the basic mandate of the case. First, let’s recall again how Justice Ginsberg defined the question before the Court:
Since the Americans with Disabilities Act prohibits discrimination against persons with Disabilities by public Entities and Programs…does that mean that the ADA requires placement of person with mental disabilities in community settings rather than in institutions?
And the answer? YES!

Then, we can note that Court highlighted certain specific language in the ADA that led to this “YES.”
a) “Historically, society has tended to isolate and segregate individuals with disabilities.” The ADA states that a major form of discrimination against persons with disabilities is to segregate them in institutions.”
b) The ADA regulations say states and other public entities shall administer their programs IN THE MOST INTEGRATED SETTING APPROPRIATE TO THE NEEDS OF QUALIFIED INDIVIDUALS WITH DISABILITIES.
c) In the introduction to the ADA regulations, the “most integrated setting” is defined as “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.”

And then we can focus on the two reasons that Justice Ginsburg came up with --why segregating people in institutions is not “equal” -- in fact, it is discriminatory. Yes, it is stating the obvious but in some ways the most amazing thing about the Olmstead case is that it does state the obvious.

The first reason: “Institutional placement of person who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.”

The second reason: “…confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contact, work option, economic independence, educational advancement, and cultural enrichment.”

People with disabilities, their families and advocates, including state hospital staff, state officials, and providers had been speaking to a brick wall for so many years before and after the ADA about this issue; those of us working on the case had begun to wonder if anyone would ever care about the injustice and suffering we were observing everyday in institutions. And the state was arguing in its briefs in the Olmstead litigation that people with mental disabilities who could live in the community might prefer to receive services in the community but they certainly had no RIGHT to receive services in the community. We were terrified. Would the court agree with that? That the state could make the decision…that one setting was as good as the other, as long as the person received “treatment.” But, fortunately, the Court was not impressed with the “separate but equal” argument. In fact, I think some of the justices might have been a little shocked by that argument.

Finally, we have to be aware that the Court gave states two justifications for temporary discrimination, that is temporary confinement of people in segregated settings who don’t need to be there if they could benefit from community services with adequate supports:

First ---a state can avoid immediate placement of a person from an institution in the community if the state has a comprehensive, effectively working plan for placing qualified persons with disabilities in less restrictive settings, and a waiting list that moves at a reasonable pace. We must be clear, thought, that the court is not talking about a waiting list to nowhere. It is not talking about lists of people ready for community where there are no services to wait for. The Court meant a waiting list for identified, appropriate services. For example, for a person in a state hospital, it might be a waiting list to get into a particular independent living apartment program.

Second, there is language in the opinion where the court acknowledges that the state has limited resources to meet the needs of other persons with disabilities. It is referring to the state’s need to spend money on both institutional and community services. But in states like Georgia, I don’t think this could justify confinement of a single person unnecessarily in a state hospital. The cost of institutional inpatient psychiatric care is between $110,000 and $160,000 a year or $300 to $440 a day. This far exceeds the cost of community care. And, more importantly, there are so few community-based residential supports for people with mental illness and so many people cycling in and out of state hospitals who don’t need to be there, who would do better in community placement.

So, it is clear that in Georgia there is no waiting list at this point for community mental health services of the type that the Supreme Court envisioned and there is no justifiable need to spend money on state institutions that should be spent on community alternative.

So we can return with confidence to the Supreme Court’s YES in answer to the question: DOES THE ADA REQUIRE PLACEMENT OF PERSONS WITH MENTAL DISABILITES IN COMMUNITY SETTINGS RATHER THAN IN INSTITUTIONS.

In conclusion, I know that I have focused on mental health. I think we have to focus on that on the 10th anniversary of Olmstead because it was from behind the walls of a state psychiatric facility here that the cry for freedom somehow reached the Supreme Court. The civil rights movement, of course, must also heed the cry of thousands of individuals unnecessarily segregated in nursing homes, institutions for people with developmental disabilities, as well as the powerful voices of those who refuse to be institutionalized, those who at risk of being institutionalized and those who are segregated in other settings besides institutions.

From now on, whenever we talk about Olmstead, rely on Olmstead, celebrate Olmstead, let’s remind anyone listening that access to integrated community services is civil right.

Raising the Bar: Legendary Rainmakers Share Their Business Development Secrets, by business development coach and long-time Atlanta Legal Aid Advisory Committee member Robin M. Hensley.

Ten instantly recognizable star lawyers give their tips on the practice of law, taking care of clients and building your business. It's all about "raising the bar" by finding your personal highest standards. The book comes with a DVD, for an up close and personal experience.

King & Spalding hosted a book launch, attended by many of the legendary rainmakers. Steve Gottlieb said that the party was like a high school annual signing party; everyone asked everyone else for autographs in their copies.

"I am delighted that Robin has decided to donate the majority of the profits of her book to Atlanta Legal Aid. . . . Above all, I would urge everyone to read Robin’s book, because she has written about such fascinating people in such a personal way."

Book Launch at King & Spalding From the launch party at King & Spalding. Frank Love,
Chilton Varner, Miles Alexander, Bobby Lee Cook,
Robin Hensley, Paul Webb (seated)

Some highlights:

Miles Alexander taught Justice Antonin Scalia and Michael Dukakis as first year law students.

Emmett Bondurant thinks that Atlanta Legal Aid "is clearly one of the leading legal aid societies in the country, and has been for over 30 years."

Bobby Lee Cook, at various times, has represented four generations of the same family.

Carl Sanders, as a B-17 bomber pilot during World War II, observed that it was lawyers who got things done . . . He got things done by becoming Governor of Georgia at age 37, and by bringing a franchise for every major professional sport to Atlanta.

And a thought from Paul Webb, "Education for a lawyer isn't just about law. It's also about history, literature, ethics, religion and morality."

More about Robin Hensley.

The Long Term Care Ombudsmen Program is involved with the newly formed group VALARI (Vulnerable Adults Living At Risk Invisibly) which is a multidisciplinary team comprised of the District Attorney, the Solicitor-General, Adult Protective Services, Long-Term Care Ombudsman Program, Probate Court, local law enforcement agencies and representatives of health care in DeKalb County. We are all working to streamline procedures to be used in investigating and prosecuting cases arising from elder and disabled adult abuse and to better coordinate treatment programs for the perpetrator, the family, and the elder or disabled adult. They are educating all law enforcement and fire department personnel in DeKalb County as to any new laws pertaining to seniors. Our Ombudsmen are helping to develop a plan for emergency protective placement for victims of abuse, neglect, or exploitation in conjunction with Emory Hospital.

An ombudsman volunteer visited a nursing home resident who had three oil paintings hanging on her wall. The resident said that she had painted them before entering the nursing home and that it was a life-long hobby that she longed to continue. Unfortunately, the nursing home staff would not allow it because the paints and cleaning fluid were considered toxic materials that she couldn’t have on the premises. The ombudsman spoke to the Activities Director who agreed to store the painting materials in her locked activities cabinet. On a follow-up visit, the volunteer found the resident in the activities room doing a pencil sketch on a blank canvas. She thanked the volunteer for getting her life back, and said that she was planning to paint a portrait of one of her grandchildren.