Assistant Attorney General Thomas E. Perez Speaks on Virginia ADA Settlement Call

Good morning. Thank you for joining us today. In the Civil Rights Division, we are in the opportunity business. We expand opportunities in a wide range of areas, and today's agreement provides opportunity that will transform the Commonwealth of Virginia's system for delivering services to individuals with developmental disabilities, including intellectual disabilities, and improve the lives of thousands of Virginians with developmental disabilities.

More than a decade ago, in its landmark ruling in the case of Olmstead v. L.C., the Supreme Court ruled that, under the Americans with Disabilities Act, states must serve individuals with disabilities in the most integrated setting appropriate to their needs.  The decision, which has been called the Brown v. Board of Education of the disability rights movement, recognized that failing to give people with disabilities a meaningful opportunity to live in the community instead of in an institution is discrimination under the ADA.  The Supreme Court recognized that unnecessary segregation of people with disabilities deprives them of the opportunities people without disabilities take for granted, like making friends, working, and participating in community life. 

Freedom and opportunity proved elusive, and the promise of Olmstead was not realized. In 2008, DOJ opened an investigation of the Commonwealth of Virginia Training Centers. In 2009, we expanded that review to examine statewide practices. We issued a letter of findings in 2011. We found that Virginia was unnecessarily institutionalizing people with developmental disabilities and placing others at risk of institutionalization.  Following our letter, we immediately began discussions with Governor McDonnell.

Today’s agreement will bring Virginia into compliance with the ADA and the Olmstead decision and provide improved community living options for people with disabilities and their families by building a comprehensive, community-based system that can meet the needs of all individuals with  developmental disabilities, including those with the most complex needs.  The agreement will provide a wide range of services to prevent the institutionalization of individuals with developmental disabilities who want to remain in their own homes and communities.  The agreement will also ensure that individuals currently in institutions will have a real opportunity to receive community services that meet their needs. 

I want to thank Governor McDonnell for his leadership in reaching this landmark agreement.  This agreement incorporates the Commonwealth’s own vision and goals for its developmental disabilities system.  The trust fund recently created and funded with $60 million dollars was concrete evidence of Governor McDonnell’s commitment to implementing this agreement.  I would also like to thank Attorney General Cuccinelli, Secretary Hazel, and Commissioner Stewart and their staff for their role in crafting this agreement.   In addition, I would like to thank United States Attorneys MacBride and Heaphy and their staff for their assistance to us. 

Virginia is a state with strong and committed advocates who have long been pushing for improvement of the Commonwealth’s developmental disabilities system.  Throughout our investigation, we met with stakeholders across the Commonwealth, to learn about what is and is not working for people with developmental disabilities.  We heard their problems and concerns, and ideas for addressing them, as well as their successes.  We heard from families who are barely hanging on while their loved ones sit on long waitlists for community services and from self-advocates wanting more opportunities to work and live independently.  We heard from the families of persons now living in institutional settings who worry whether the needs of their loved ones can be met in community settings.  We also met with some individuals, including some with complex needs, who are being successfully served in the community.  Our agreement draws on the input from these critical stakeholders about how to best meet the needs of all Virginians with developmental disabilities.   Continued collaboration with and input from these stakeholders will be a critical part of the implementation of the agreement.

There are two primary goals of the agreement:

·          First, 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.

·          Second, 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.

This agreement is a win-win-win for the Commonwealth and the people of Virginia.  First, it fulfills the Commonwealth’s legal obligation to comply with the ADA’s civil rights requirements.  Second, it fulfills its fiscal obligation to Virginia taxpayers.  By expanding cost-effective community-based services and reducing its reliance on expensive, institutional care, the Commonwealth will be able to use its limited resources to meet the needs of a larger number of its citizens with developmental disabilities.   Finally, the agreement will serve the Commonwealth’s moral interest in serving people with developmental disabilities in the way most conducive to independence and full participation in community life. In short, this agreement enables the commonwealth to serve more people in a better fashion, and to spend scarce dollars in a more effective manner.

The agreement will provide relief for more than 5,000 Virginians with developmental disabilities and will have an impact on thousands more individuals receiving developmental disability services.  The agreement will create a total of approximately 4,200 home and community-based waivers for people who are on waitlists for community services and individuals transitioning from institutional settings 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 home or their own home. 

Under the agreement, the Commonwealth will also create a comprehensive community crisis system with a full range of crisis services -- including a hotline, mobile crisis teams, and crisis stabilization programs -- to divert individuals from unnecessary institutionalization or other out-of-home placements.   The agreement requires the Commonwealth to develop and implement an “Employment First” policy to prioritize and expand real work opportunities for individuals with developmental disabilities.  In addition, the agreement will create an $800,000 fund for housing assistance to facilitate opportunities for independent living for people with developmental disabilities.  Finally, the agreement requires the Commonwealth to create a strong and comprehensive quality and risk management system to ensure that community-based services are safe and effective.  

The agreement is court enforceable and will be monitored by an independent reviewer that was jointly selected by the United States and the Commonwealth.  The independent reviewer has a broad range of experience in disability service systems, including as superintendent of a state-operated facility, regional director charged with developing a range of community services, and executive director of a provider of community services to individuals with the most complex needs. 

Today’s agreement is part of a broad, nationwide effort to enforce the Olmstead decision.  In the last three years, the Civil Rights Division has joined or initiated litigation to ensure community-based services in more than 35 matters in 2o states.  And we have investigations pending in a number of other states. We reached comprehensive agreements with the states of Georgia and Delaware that, like the agreement with Virginia, provide broad relief for thousands of individuals with disabilities.  Our enforcement covers a wide range of settings – from state-operated centers for people with developmental disabilities, to state psychiatric hospitals, to state-funded private adult care homes and nursing homes, to segregated day programs.  It also covers a broad range of populations – from people with intellectual and developmental disabilities, to people with mental illness, to people with physical disabilities.

This is a landmark agreement, a blueprint for sustainable reform, and a model for ADA Olmstead enforcement going forward. 

Today’s agreement will allow Virginia to avoid costly litigation and move directly to providing the services that its citizens with disabilities need to live in their communities and to have opportunities like people without disabilities.  Across the country during the deinstitutionalization movement of the 1970s and 1980s, doors were opened.  But the community infrastructure was lacking, and the promise of integration for people with developmental disabilities remained elusive. We can – and must – do better as a nation, and this agreement will serve as a national model for efforts moving forward.

The Commonwealth and its leadership are to be commended for their leadership in tackling this problem, and I thank them for their cooperation.  This agreement is about choice, opportunity, expanded services and quality assurance. We look forward to continuing to work with the Governor and with community stakeholders in order to implement this historic agreement.