Bush signs Executive Order to implement Olmstead

President Bush signed an Executive Order to "...place qualified individuals with disabilities in community settings whenever appropriate..." at a Pentagon press event. 

The order states the "United States is committed to community based alternatives for individuals with disabilities and recognizes that such services advance the best interests of Americans." The U.S. Supreme Court made a similar finding in the 1999 Olmstead ruling; now the Bush Administration has given the Executive Branch some direction in following the Olmstead decision.

The order requires that the Department of Health and Human Services (HHS) take the lead and work together with the Departments of Justice (DOJ), Education (DOE), Labor (DOL), and the Social Security Administration (SSA). These agencies are to implement Olmstead in a timely manner, assess States compliance, provide technical guidance and ensure that existing Federal resources are used in the most effective way to support the goal of the ADA.

The order also requires the Attorney General and the Secretary of HHS to "fully enforce Title II of the ADA." Title II applies to government entities that may have authority in directing Medicaid funding into a state. 

Nationally, about 70% of the public funds intended for the long-term care of Americans are channeled to the nursing home industry and institutions. This bias limits Americans choice to live in the community or at home, and subsidizes the for-profit nursing home industry.

Nursing homes are the most expensive and least desirable form of long-term care, yet in Tennessee the powerful nursing-home lobby is able to direct 95% of public funding away from home and community-based alternatives that Americans prefer. Recently, the Commercial Appeal reported that:

Unlike most other states, Tennessee authorizes nursing homes to be reimbursed through its Medicaid system for the dues they pay to an industry association. 
-The Commercial Appeal [May 14, 2001. p. B1]

The "industry association" is the Tennessee Health Care Association; the $2.3 million nursing home lobby that uses Medicaid public funding to influence legislators.

"This is a day that we will all remember as the day that the Americans with Disabilities Act roared out loud and people with disabilities were heard," said Deborah Cunningham, organizer of Memphis ADAPT following the Supreme Court's ruling in Olmstead v. L.C. "Tennessee can no longer deny a place in the community for people with disabilities."

Implementation of the Olmstead decision has been appallingly slow. Tennessee has developed some programs that aim to expand home and community based programs, however; they are too restrictive to actually get people with disabilities out of nursing homes. The new programs may only help to keep some people with disabilities from entering the nursing home.

This past May 15, 2001, ADAPT marched to the White House and got a firm assurance that the Bush Administration would sign an Executive Order to implement the U.S. Supreme Court decision in Olmstead v. L.C. Four hundred and fifty ADAPT members visited the White House to support a group of fifteen that met with the President's Domestic Policy Council, John Bridgeland who promised the Executive Order would be signed in less than 30 days.  

- Tim Wheat

Following is the text of the Executive Order

THE WHITE HOUSE

 

Office of the Press Secretary For Immediate Release June 19, 2001

EXECUTIVE ORDER COMMUNITY-BASED ALTERNATIVES FOR INDIVIDUALS WITH DISABILITIES


By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to place qualified individuals with disabilities in community settings whenever appropriate, it is hereby ordered as follows:

Section 1. Policy. This order is issued consistent with the following findings and principles:

(a) The United States is committed to community-based alternatives for individuals with disabilities and recognizes that such services advance the best interests of Americans.

(b) The United States seeks to ensure that America's community-based programs effectively foster independence and participation in the community for Americans with disabilities.

(c) Unjustified isolation or segregation of qualified individuals with disabilities through institutionalization is a form of disability-based discrimination prohibited by Title II of the Americans With Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 et. seq. States must avoid disability-based discrimination unless doing so would fundamentally alter the nature of the service, program, or activity provided by the State.

(d) In Olmstead v. L.C., 527 U.S. 581 (1999) (the "Olmstead decision"), the Supreme Court construed Title II of the ADA to require States to place qualified individuals with mental disabilities in community settings, rather than in institutions, whenever treatment professionals determine that such placement is appropriate, the affected persons do not oppose such placement, and the State can reasonably accommodate the placement, taking into account the resources available to the State and the needs of others with disabilities.

(e) The Federal Government must assist States and localities to implement swiftly the Olmstead decision, so as to help ensure that all Americans have the opportunity to live close to their families and friends, to live more independently, to engage in productive employment, and to participate in community life.

Sec. 2. Swift Implementation of the Olmstead Decision: Agency Responsibilities. 

(a) The Attorney General, the Secretaries of Health and Human Services, Education, Labor, and Housing and Urban Development, and the Commissioner of the Social Security Administration shall work cooperatively to ensure that the Olmstead decision is implemented in a timely manner. Specifically, the designated agencies should work with States to help them assess their compliance with the Olmstead decision and the ADA in providing services to qualified individuals with disabilities in community-based settings, as long as such services are appropriate to the needs of those individuals. These agencies should provide technical guidance and work cooperatively with States to achieve the goals of Title II of the ADA, particularly where States have chosen to develop comprehensive, effectively working plans to provide services to qualified individuals with disabilities in the most integrated settings. These agencies should also ensure that existing Federal resources are used in the most effective manner to support the goals of the ADA. The Secretary of Health and Human Services shall take the lead in coordinating these efforts.

(b) The Attorney General, the Secretaries of Health and Human Services, Education, Labor, and Housing and Urban Development, and the Commissioner of the Social Security Administration shall evaluate the policies, programs, statutes, and regulations of their respective agencies to determine whether any should be revised or modified to improve the availability of community-based services for qualified individuals with disabilities. The review shall focus on identifying affected populations, improving the flow of information about supports in the community, and removing barriers that impede opportunities for community placement. The review should ensure the involvement of consumers, advocacy organizations, providers, and relevant agency representatives. Each agency head should report to the President, through the Secretary of Health and Human Services, with the results of their evaluation within 120 days.

(c) The Attorney General and the Secretary of Health and Human Services shall fully enforce Title II of the ADA, including investigating and resolving complaints filed on behalf of individuals who allege that they have been the victims of unjustified institutionalization. Whenever possible, the Department of Justice and the Department of Health and Human Services should work cooperatively with States to resolve these complaints, and should use alternative dispute resolution to bring these complaints to a quick and constructive resolution.

(d) The agency actions directed by this order shall be done consistent with this Administration's budget.

Sec. 3. Judicial Review. Nothing in this order shall affect any otherwise available judicial review of agency action. This order is intended only to improve the internal management of the Federal Government and does not create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.

GEORGE W. BUSH

THE WHITE HOUSE,
June 18, 2001.