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Olmstead requires choice
in residential settings

As the Administration considers its Olmstead Executive Order, and sorts out the positions of the various advocacy organizations, it must remember what the Supreme Court required. Prudently, the Supreme Court, in its Olmstead ruling, recognized the need for a range of services which respond to the varied and unique needs of the entire disability community:

(1) Unjustified institutionalization is discrimination based on disability.

119 S. Ct. 2176, 2185 (1999).

(2) Community placement is required when the state’s treatment professionals determine community placement is appropriate, the individual, or his/her guardian, does not oppose transfer from institutional care, and placement can be reasonably accommodated by the State taking into account the resources available, and the needs of others with mental disabilities. 119 S. Ct. at 2181.

(3) A majority of Justices in Olmstead recognized an ongoing role for publicly and privately-operated institutions: "We emphasize that nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings...Nor is there any federal requirement that community-based treatment be imposed on patients who do not desire it."

119 S. Ct. at 2187.

(4) A plurality of Justices noted: "As already observed [by the majority], the ADA is not reasonably read to impel States to phase out institutions, placing patients in need of close care at risk... ‘Each disabled person is entitled to treatment in the most integrated setting possible for that person - recognizing on a case-by-case basis, that setting may be an institution quoting VOR’s Amici Curiae brief]." 119 S. Ct. at 2189.

(5) Justice Kennedy noted in his concurring opinion, "It would be unreasonable, it would be a tragic event, then, were the Americans with Disabilities Act of 1990 (ADA) to be interpreted so that states had some incentive, for fear of litigation to drive those in need of medical care and treatment out of appropriate care and into settings with too little assistance and supervision." 119 S. Ct. at 2191.

Choice in residential options is VOR’s guiding principle. VOR is the leading organization representing individuals with mental retardation and their families. We are the only national organization which supports a full continuum of care options available to people with mental retardation, including own-home, community-based supports, and Intermediate Care Facilities for the Mentally Retarded (ICFs/MR).

People with mental retardation, especially individuals with severe and profound mental retardation, have vastly different support requirements than cognitively-able individuals with physical disabilities. Advocacy efforts by organizations that do not fairly consider the specialized care requirements of people with severe and profound mental retardation has lead to the elimination of large ICFs/MR across the country. Many of the residents of ICFs/MR experience medical complexities and/or behavioral concerns that can best be met in these specialized settings. In recent years, the resulting transfer of many thousands of such individuals to ill-prepared and poorly equipped community-based providers has led to increased mortality, abuse and neglect.

VOR respectfully requests that the Olmstead Executive Order expressly support the full continuum of residential options required by the disability community, including ICFs/MR. Indeed, the Supreme Court decision in Olmstead requires no less.

For more information please contact:
Marilyn Straw
President
520 Southfork Drive
Waukee, Iowa 50263
520-225-0895 ph/fax 
wstraw@gateway.net

Nancy Ward
President-Elect (July 1, 2001)
4441 Cartagena Drive
Fort Worth, Texas 76133
817-292-0122 ph/fax
jerryw@flash.net

Mary McTernan, Chair
Government Affairs Committee
8 Baldwin Lane
Lynnfield, Massachusetts 01940
781-334-4233 ph/fax

Tamie Hopp
Executive Director
5005 Newport Drive, Suite 108
Rolling Meadows, Illinois 60008
605-399-1624 voice
605-399-1631 fax
vor@compuserve.com

Bill Burke, Esq.
Burke & Stone
370 Lexington Ave., Rm. 1205
New York, New York 10017
212-697-6200 voice
212-687-3333 fax 
bursto3@aol.com