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9/29/99, 10:41 amcdt

FACT SHEET:

WHY THE OLMSTEAD CASE?

People with disabilities are the only adult members of society who are institutionalized and incarcerated without committing criminal offenses. Institutions, nursing homes, group homes and other settings require that their rules and their schedules come before an individuals choice to decide when and how they perform their daily routine activities. In addition, the institution limits the individuals contact with the community. Isolation is a form of discrimination against people qualified for and desiring community based treatment.

WHO WAS THE OLMSTEAD CASE ABOUT?

L.C. and E.W. are two mentally retarded women; L.C. has also been diagnosed with schizophrenia, and E.W. with a personality disorder. Both women were voluntarily admitted to Georgia Regional Hospital in a psychiatric unit. Later, the State of Georgia , their treatment professionals and the women all agreed that they could be appropriately placed in a community-based program, however, they remained institutionalized. The women sued in Federal District Court and the judge ordered the placement of L.C. and E.W. in community-based treatment. The state appealed to the Eleventh Circuit and finally to the US Supreme Court which issued its decision in June 1999.

WHAT LAWS DID OLMSTEAD ADDRESS?

In the 1990 Americans with Disabilities Act (ADA), Congress addressed the isolation and segregation of individuals with disabilities as a serious and pervasive form of discrimination. 42 USC 12101 (A)(2)(5) Title II of the ADA prohibits discrimination in the provision of public services. It states that no qualified person with a disability shall "by reason of such disability" be excluded from participation of public entity services, programs, or activities.

The Attorney General issued regulations to address discrimination through isolation and segregation of people with disabilities. One regulation known as the integration mandate, requires a public entity to administer programs "in the most integrated setting appropriate to the needs of qualified individuals with disabilities" [28 CFR 35.130 (d)]. Further, a REASONABLE MODIFICATION REGULATION requires that the public entities make reasonable accommodations, but doesn't require measures that they "fundamentally alter the nature of the service, program, or activity"

WHAT DID THE SUPREME COURT DECIDE?

Under the ADA:

"unjustified placement or retention of persons in institutions, severely limiting their exposure to the outside community, constitutes a form of discrimination."

"Unjustified institutional isolation ... reflects two evident judgments. First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life ... Second, confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contracts, work options, economic independence, educational advancement, and cultural enrichment."

States must avoid this unjustified isolation, unless the reasonable modifications would "fundamentally alter the nature of the service program or activity." While the "fundamental alterteration" regulation existed before the Olmstead decision, there was one major change that the Supreme Court made. Before Olmstead, we compared the costs of the individual in an institution to this individual's cost in the community. Because it was less expensive for the named plaintiffs (LC & EW) in the community, the two lower courts had held there was no "fundamental alteration in the program".

After the Supreme Court decision, the comparison has been broadened. Now in order to use the "fundamental alteration" defense, states must affirmatively prove its programs, services and activities, as reflected in its allocations of resources, are "even handed" and ensure a "full range" of services.

States may have a waiting list for services, however the Supreme Court requires that this list "move at a reasonable pace". This "reasonable pace" cannot be controlled by the states endeavors to keep institutions and nursing homes fully populated.

WHAT DOES OLMSTEAD MEAN FOR TENNESSEE?

Before Olmstead the question was: "Should people with disabilities live in the community?" Today the question for Tennessee is "how are we to provide services for people with disabilities in the community?"

1. Tennessee must administer services with an "even hand" and ensure a "full range" of services. While Tennessee currently through programs, waivers, and services does have a full range of services, an analysis of Tennessee's expenditure for institutions versus community-based programs is now essential to implement Olmstead. In the Medicaid program nationally, there is a bias toward funding institutional care. There the split is 80% for funds to institutions, 20% to community-based services. In reviewing the finances in Tennessee, the standard needs to be: is there a full range of services such that individuals with disabilities are afforded a real choice to live in the most integrated setting?

2. Tennessee needs to develop a plan that is "comprehensive" or effectively working to move people into less restrictive living situations. Tennessee needs to create guidelines to explain who, when, and how people will be moved to less restrictive settings, and additionally defining the need for an increase in home and community based services to provide the "even handed" administration of those services.

3. Tennessee needs to provide a definition of what a reasonable response time is when an individual is found qualified for less restrictive living. Tennessee may have waiting lists, however, the Supreme Court requires that the list move "at a reasonable pace". In other words, how long should anyone unnecessarily and unjustified stay in an institution or nursing home?

4. Tennessee's Legislature will need to review current funding so that a broad range of facilities are available for the community services required to get people out of institutions, nursing homes, group homes, etc.

There is legislation pending in Congress called the Medicaid Community Attendant Services and Supports Act of 1999 (MiCASSA). MiCASSA creates an alternative funding of Medicaid current dollars. MiCASSA allows individuals eligible for nursing homes or Intermediate Care Facility Services for the Mentally Retarded (ICFMR) the choice to use these dollars for community attendant services or support. The money FOLLOWS THE INDIVIDUAL! The state should be instrumental in obtaining support for MiCASSA from Tennessee's Congressional delegation.

For more information contact Tim Wheat.

The Memphis Center for Independent Living
1633 Madison Avenue, Memphis, TN 38104
(901) 726-6404 v/tty (901) 726-6521 fax
mcil@mcil.org 

MCIL is a United Way of the Mid-South member Agency

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