Waiting lists for parents of children with developmental disabilities is almost viewed as a ‘right of passage’ for those in need of Home and Community Based Services (HCBS). States all across America have the right to maintain their waiting list at their discretion and based on available funds for services. However a recent lawsuit, Barba v. John Kasich, here in the State of Ohio is getting national attention. The U.S. Department of Justice is claiming that the State of Ohio is failing to provide disability services in accordance with the ADA (Americans with Disabilities Act). This month the Department of Justice released a statement of interest. It claims that if an individual is not receiving services in the community they may have a claim of their rights being violated.
The State of Ohio has maintained it’s waiting lists at the county boards of DD. Waiting lists for services are created when the funds needed to provide services are not currently available. The waiting list is designed for individuals ‘waiting’ for various waivers offered by the state of Ohio such as Individual Options, Level One and SELF. According to the Ohio Department of Developmental Disabilities, waiting lists are categorized in three sections in accordance to law:
- Emergencies – substantial risk to harm of self or others
- Priorities – priority as determined by the County Board and case-by-case
- Date of Request – based on date when added to the list
On March 31, 2016 Disability Rights Ohio along with attorneys and indivduals with developmental disabilities filed a class action lawsuit against the State of Ohio, including the Ohio Department of Developmental Disabilities, the Ohio Department of Medicaid, and Opportunities for Ohioans with Disabilities. Disability Rights Ohio states
The suit, filed in the United States District Court for the Southern District of Ohio and initiated on behalf of individuals with developmental disabilities who are trapped in institutions or are at risk of institutionalization because of Ohio’s illegal service system, asserts that the state is in violation of the Americans with Disabilities Act and the Supreme Court ruling in Olmstead v. L.C.
In a statement released by DRO on March 31st it states that ‘real options’ are not readily available for individuals with disabilities to live in their community. It states that funds are available for individuals who require institutional settings, however funds are limited when it comes to community based settings. The State of Ohio responded with a motion to have the case dismissed. However, that motion was denied and it brings the story back to the top. The Department of Justice continues to weigh in by expressing
Non-institutionalized individuals with disabilities who are not currently receiving state-funded home- and community-based services may bring a claim that a public entity has placed them at risk of institutionalization or segregation in violation of the ‘integration mandate’ of Title II of the Americans with Disabilities Act…Individuals with disabilities need not wait until they are institutionalized to assert a claim
The State of Ohio claims that those on the waiting list are not necessarily at risk of being institutionalized. That risk would come based on a “state action or change of policy”. However the Department of Justice states that the continuous denial of services maybe be a sufficient risk to institutionalization.
The waiting list in Ohio has been a source of contention for years. The Ohio Department of Developmental Disabilities with the help of local County Boards of DD have continued to whittle away at the growing numbers to ensure individuals receive the services they require. However the numbers continue to be staggering, over 40,000 individuals state wide are on the combined waiting lists. In my opinion the primary question at hand to be answered for the 40,000 individuals is what is the need and how soon? Time will tell how this plays out, but for now it is hopeful that local county boards of DD would be reviewing their current waiting list statistics in light of this recent spotlight on Ohio.