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Prepared by Center for Public Representation for the National Association
of Protection and Advocacy Systems
October 7, 1999
1 1)
- In a nutshell, what does the Olmstead v. L.C. decision mean for people withdisabilities?
In Olmstead v. L.C. and E.W., 119 S.Ct. 2176 (1999) the Supreme Court stated loud and clearthat the denial of community placements to individuals with disabilities is precisely the kind ofsegregation that Congress sought to eliminate in passing the Americans with Disabilities Act(ADA). The Supreme Court correctly noted that unnecessary segregation and institutionalizationconstitute discrimination and violate the ADA's “integration mandate” unless certain defenses areestablished. The decision presents new opportunities for advocating for community-basedservices and supports for people with disabilities.
2 2)
- Who are Olmstead, L.C and E.W? Why did their case get decided by the SupremeCourt?
L.C. and E.W. (Lois Curtis and Elaine Wilson) are two women who have mental illness andmental retardation and were confined in a Georgia state psychiatric hospital. L.C. and E.W.wanted to receive appropriate services in the community and live outside of the state hospital. Their doctors agreed that the women were ready for discharge to the community. However, thestate already maintained a long list of qualified persons waiting for one of the state's fewcommunity placements to became available. As a result, L.C. and E.W. remained unnecessarily institutionalized for years as they waited on this list. L.C. and E.W. filed suit against TommyOlmstead the Commissioner of Georgia's Department of Human Resources. That lawsuit, whichis now referred to as Olmstead v. L.C., charged that Olmstead violated the ADA integrationmandate by failing to provide L.C. and E.W. services in the most integrated setting appropriate tomeet their needs, which in their case was the community not an institution. After years oflitigation, Olmstead asked the Supreme Court to decide once and for all whether unnecessaryinstitutionalization of individuals with disabilities is a form of discrimination prohibited by theADA.
3 3)
- L.C. and E.W. had mental
retardation and mental illness. Does that mean thisdecision only
impacts people with mental retardation and mental illness?
This decision involved interpretation of the ADA. The ADA prohibits discrimination againstpersons with disabilities regardless of their disability. The ADA requires services to be providedto individuals with disabilities in the most integrated setting appropriate to their needs, regardlessof disability and regardless of whether they live in an institution, a nursing home or community.
4 4)
- What is the “ADA integration mandate” referred to by the Supreme Court?
-
. . . no qualified individual with a disability shall, by reason of his
disability, beexcluded from participation in, or be denied benefits of
the services, programs, oractivities of a public entity, or be
subjected to discrimination by any such entity
Congress also instructed the U.S. Attorney General to issue regulations defining the forms ofdiscrimination prohibited by this section of the law. The Attorney General issued this regulation,commonly referred to as “the integration mandate:”
-
A public entity shall administer services, programs, and activities in
the mostintegrated setting appropriate to the needs of qualified
individuals with disabilities.
[28 CFR Section 35.130(d)]
5 5)
- When the Supreme Court uses the word “institution,” does that also include nursinghomes?
The Supreme Court declared that the ADA requires services for individuals with disabilities to beprovided in the most integrated setting appropriate to their needs. If an individual is qualified toreceive services in the community rather than an nursing home and the state refuses to do so, thestate is violating the ADA, unless the state can establish the defenses discussed below.
6 6)
- Does this decision only
affect people who are institutionalized? What about peoplewho are on
waiting lists to receive community services but they do not live
ininstitutions, how are they impacted by the decision?
This is a complex issue and the answer is not certain. However, it seems reasonable that a statewould need to provide services to all persons at risk of institutionalization if the state claimed tohave a comprehensive, effectively working plan for placing qualified persons in less restrictivesettings,” as a defense to a lawsuit. (This state defense to a lawsuit for failure to comply with theADA integration mandate is explained in question number 10 in this document.) Planning andcomprehensiveness by their nature require thinking ahead to those at risk of institutionalization. Ifan individual is on a waiting list to receive community supports, the state can presume that personis not currently receiving adequate community supports. If a person is not receiving appropriatecommunity services, then they are at risk of institutionalization.
7 7)
- Does the Olmstead v. L.C. decision establish that all institutionalization constitutesdiscrimination prohibited by the ADA integration mandate?
No. The decision establishes that the ADA integration mandate requires the state to placepersons with disabilities in community settings if the community, not an institution, is the mostintegrated setting appropriate to their needs. The Supreme Court set up a two part test todemonstrate that a community is the most integrated setting appropriate. First, the state's treatingprofessionals should determine that community placement is appropriate for the individual. Second, the transfer from institutional care to a less restrictive setting should not be opposed bythe affected individual. If that two-part test is met, then that person is presumed to be
unnecessarily institutionalized, unless the state can establish certain defenses.
8 8)
- What if a state treating
professional fails to determine that the community is themost
integrated setting appropriate to meet an individuals needs, can the
assessmentof the state's treating professional be challenged?
Yes, the decision leaves room for the state's treating professional's assessment to be challenged. When the Supreme Court explained its two-part test it said that states may “generally rely on thereasonable assessments” of their own professionals as to whether an individual is appropriate forcommunity-based services. Certainly, “generally rely on” does not mean total deference to thetreating professionals on this matter. While the state can probably not simply ignore theassessments of the state professional, the Court seems to leave room for an individual to ask foranother assessment from an independent evaluator or for the state professionals opinion to bechallenged.
Also the Court said the state treating professionals assessment must be “reasonable.” While theCourt did not define the elements of a “reasonable” assessment, a strong case can be made that, tobe reasonable, an assessment must be made by a qualified professional who is familiar withrelevant professional standards and the capacities of community systems. An assessment could bechallenged as unreasonable if it is made by an unqualified professional. A professional may beunqualified not only because the professional lacks appropriate credentials, but also because theprofessional lacks important knowledge. The professional may be ignorant of current standards inthe field, or be unfamiliar with capacities of community systems, especially services that are nowavailable to meet even the most challenging of needs, For example, wrap-around, crisis andrespite services.
An assessment may also be challenged as unreasonable if it is the product of a flawed process. For example, it is common for institutions to judge an individual “not ready” for the communitysolely because there is no community placement currently available for that individual. Institutional staff that determine individuals to be ready for discharge only if and when servicesbecome available (i.e., a community “slot” opens up) are not making “reasonable” assessments ofcommunity readiness. Such assessments should be based on the capacities and needs of theindividual with a disability, and on whether appropriately crafted community services can meetthose needs. Whether appropriately crafted services are currently available in the community hasno bearing on whether the community is the most integrated setting appropriate for an individual.
- What if an individual opposes community placement. Does that mean theindividual has a right to remain in an institution?
No. This issue came before the Pennsylvania District Court which ruled that Olmstead v. L.C.does not give a person an right to remain in an institution. Specifically, advocates forinstitutionalization sought to intervene in a case called Richard C. v. Houstoun, (W.D. Pa. Sept.29, 1999). These advocates wanted to intervene in the case so that they could challenge asettlement agreement under which Pennsylvania agreed to place residents of a state mentalretardation facility into appropriate, community programs. The proposed interveners, relying onthe Olmstead decision, argued that the facility's residents have a right to remain in the facility ifthey oppose community placement. The District Court, rejected the proposed interveners'argument, and made it clear that nothing in the Olmstead decision precludes a state from closingor downsizing institutions or placing individual residents into the community and that the ADAdoes not confer on individuals the right to veto such actions.
10 10)
- Unnecessary
institutionalization is considered unlawful under the ADA
integrationmandate unless the state can establish certain defenses.
What are those defenses?
The Supreme Court makes clear that unnecessary institutionalization is presumed to bediscrimination under the ADA and is therefore illegal. However, the Court does offer states adefense to lawsuits challenging states' failure to provide services in the most integrated settingappropriate to the individuals needs. The Court held that a state is not required to transfer anunnecessarily institutionalized person to the community if doing so would “fundamentally alter”the state program that the lawsuit is challenging.
The Court said that the state may look at three factors in order to establish that serving anunnecessarily institutionalized individual(s) in a more integrated setting would require afundamental alteration of its program.
Factor One: The cost of providing community services to the individual(s). The Court is clearthat states will have to bear some costs to accommodate plaintiffs' community service needs. TheCourt recognizes that needless institutionalization is an evil that the ADA was designed toredress, and emphasizes the need for states to accommodate individuals' interest in being servedin the community. As we know from nine years of case precedent regarding ADA requirementsan accommodation may be reasonable even if it imposes costs.
Factor Two: The resources available to the state to fund community services. Resourcesavailable to the state are not limited to those already invested in the community system. At aminimum, they include the resources invested in the institutions in which the individual(s) reside. The Court endorses the notion that a state can be required to fund community placements bymoving resources from institutions to the community. Again that is the minimum. It may also betrue that resources available to the state should include resources that the state might obtain byaggressively seeking additional funds from the legislature, for example, by restructuring orrefining its Medicaid program (e.g., participating in optional programs, broadening servicedefinitions, and expanding waiver programs), or by taking advantage of other available resources.
Factor Three: The “needs of others with mental disabilities,” including, “the State's need tomaintain a range of facilities for the care and treatment of persons with diverse mental disabilitiesand the State's obligation to administer services with an even hand.” The Court's concern thatstates maintain “a range of facilities” and be “even-handed” does not automatically mean a loss ofcommunity placements for people with disabilities. In fact, since most states have too muchinstitutional capacity and offer too few community services, increasing the amount of communityservices would only improve the “range of facilities” offered in a state. Thus, from the advocatesperspective, it is helpful that the Court expressly recognized the need for states to operate systemswith an appropriate array of services, including sufficient community services.
11 11)
- Does the Olmstead v. L.C.
decision require the state to develop a plan for movingunnecessarily
institutionalized persons into appropriate community placements?
The decision says a state may have a defense to lawsuits challenging the state's failure to serveindividuals in the most integrated setting appropriate if it has a "comprehensive, effectivelyworking plan for placing qualified persons with mental disabilities in less restrictive settings.”
The Court did not define a “comprehensive” plan. It seems appropriate that a “comprehensive”plan is one that addresses the placement needs of all individuals who are unnecessarilyinstitutionalized or at risk of institutionalization. A state may have different plans to addressdifferent populations, as long as the needs of all individuals unnecessarily institutionalized areaddressed.
The Court does not define “effective.” It seems logical however that an “effective” plan must havecertain features:
1) The plan must be directly connected to the resources to fund its activities. A plan that cannotbe implemented because of insufficient resources is no plan at all.
2) The plan must ensure the identification of individuals who are needlessly confined, whatservices they require, and the cost of those services. Without such information, the state has nomeans to even evaluate whether unnecessarily institutionalized persons are moved from theinstitution to the community.
3) The plan must include quality assurance and evaluation components, for example, ongoingmonitoring and adjustment of community supports to ensure they are of high quality and meetindividualized needs. Without a system to evaluate quality of community services individuals areat risk of returning to institutions unnecessarily. A more detailed template of essential elements ofa state plan is available from the National Association of Protection and Advocacy Systems.
12 12)
- Does the decision give
states a “date certain” by which time they are required to beserving
all unnecessarily institutionalized persons in the community with
supports?
The Court did not provide a specific date by which all individuals have to be appropriately served. However, the tone of the decision certainly suggests a sense of urgency. After all this is about anongoing violation of a person's civil rights. The Court concedes that a state may maintain awaiting list of individuals appropriate for community services. At the same time, the Court iswary that a state may use such a list to delay community integration and it acts to forbid suchstalling tactics by clarifying that “a waiting list [must move] at a reasonable pace not controlled bythe State's endeavors to keep its institutions fully populated.”
What constitutes a reasonable pace is not defined by the Court. Once again, given that we aretalking about denial of civil rights only quick action would seem to be reasonable. The 11thCircuit and the U.S. District Court for Massachusetts ordered that a “reasonable pace” forMedicaid services to be delivered to an individual as required by the federal Medicaid Act is nomore that 90 days from the time the need was identified and requested. Advocates may wish touse this as a benchmark for determining reasonable pace. The key, of course, is that an individualmust be discharged to an existing network of quality supports and services. Meeting a deadline isno excuse for a hasty placement that results in an inadequate array of community supports andservices.
13 13)
- How can I help to make sure
that my state complies with the Supreme Courtmandate and provides
supports and services to individuals with disabilities in themost
appropriate setting to meet their needs?
People with disabilities and their advocates can make sure that their state officials know of theSupreme Court's mandate and comply with the decision in this case. In most cases, compliancewill mean that the state develops a “comprehensive, effectively working plan for placing qualifiedpersons in less restrictive settings.” Consumers and advocates must insist on meaningful inputinto this plan. Beyond input consumers and advocates must be prepared to react if the elementsof the plan are not implemented. This is a big job and is larger than any one person. Advocatesare encouraged to work in coalition with other consumers and disability organizations to increasethe chance that their voice is heard.
Getting involved in the planning process need not be the sole focus of advocacy efforts. Advocates should be alert to the danger that some states may use the planning process merely todelay and stall efforts to immediately place those individuals who are already identified asappropriate for community services. Advocates should insist that the state planning process moveexpeditiously, and that it be accompanied by some immediate effort to expand the state's capacityfor serving people in the community. The national disability community has established July 26,2000, the anniversary of the ADA, as its deadline to make significant progress in placing qualifiedpeople in less restrictive settings.
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