August 4, 2004

Olmstead, Unnecessary Institutionalization and Your State

By Steve Gold

The United States Department of Justice (DOJ) wrote this week that the State of California violated the ADA because the State contributed to the "unnecessary institutionalization" of persons with disabilities in nursing homes (specifically, Laguna Honda). The DOJ wrote:

"The Supreme Court [in Olmstead] has made clear that unnecessary isolation of individuals with disabilities in institutions, including nursing homes, is discrimination that diminishes individuals' ability to lead full and independent lives. The [ADA] requires, and we will ensure, that people with disabilities, like all Americans, have equal access and opportunity to participate in community life."

The DOJ stated that it "found evidence that California has failed to ensure that residents eligible for community placement have meaningful access to community alternatives. Instead, the state routinely authorizes placements without requiring adequate assessments evaluating the appropriateness of home- and community-based care. As a result, individuals are not informed of community options available in California and remain at Laguna Honda long after they become eligible for community programs and services."

Each of your States violates the ADA/Olmstead in the same way. Each State "contributes" to unnecessary institutionalization the same as California, because each State:

1. "fail[s] to ensure ... meaningful access to community alternatives;"

2. "routinely authorizes placement with requiring adequate assessments" to determine community-based care; 

3. "not inform[ing disabled persons of] community options; and therefore,

4. forces persons to "remain [in nursing homes] long after" they could live in the community.

DOJ's investigation and findings are to ensure that persons in nursing homes "are being served in the most integrated setting appropriate to their needs, as required by the ADA" and is part of DOJs' "efforts to enforce the Supreme Court's 1999 decision, Olmstead v. L.C, in which the Court held that, pursuant to the Americans with Disabilities Act, states must provide services to residents with disabilities in the most integrated setting appropriate." 

What Advocates Should Do:

1. Use this DOJ letter and finding to review if your State violates the ADA/Olmstead. Use the above four points as the starting point.

2. During the fall 2004 election period, ask your candidates what they will do to implement these findings in your state.

3. Use the MDS to make sure that AT LEAST the 20% of the persons in nursing homes who answer they want out of nursing homes have their ADA/Olmstead rights enforced. Get them out!

4. Get a meeting with your Governor and combine the NGA resolution with the DOJ findings. Explain to your Governor how s/he can both "do the right thing" and "get points" from the disability community. Use the DOJ to get a commitment from your Governor that at the February 2005 NGA meeting, your Governor will support the ADAPT resolution.

Steve Gold, The Disability Odyssey continues

Back issues of other Information Bulletins are available online at http://www.stevegoldada.com with a searchable Archive at this site divided into different subjects. To contact Steve Gold directly, write to stevegoldada@cs.com