DON'T BE
MISLED
ON WHAT
THE OLMSTEAD SUPREME COURT DECISION SAYS
(1) What Olmstead is Not:
"Olmstead" is not a federal act or statute. Rather, it is a U.S.
Supreme Court decision which reinforced the rights of individuals with mental
retardation and their parents and guardians to choose the residential setting
that is best for these persons.
(2) How Olmstead
is misused:
In support of their objective to downsize and close ICF/MR (Intermediate Care
Facilities for the Mentally Retarded), certain advocates are emphasizing
portions of the Court's opinion regarding "unjustified
institutionalization" and ignoring important parts of the Court's decision.
(3)
The Olmstead decision supports facility-based (institutional care) for those
individuals whose severe impairments require the close care found in such
settings.
A majority of Justices in Olmstead recognized an ongoing
role for publicly and privately-operated institutions:
"We emphasize that nothing in the Americans with Disabilities Act 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
"Unjustified isolation, we hold, is properly regarding as discrimination
based
on
disability. But we recognize, as well, the States' need to maintain a
range
of facilities for the care and
treatment of persons with diverse mental disabilities, and
the States' obligation to
administer services with an even
hand." 119 S. Ct. at
2185.
The plurality opinion in Olmstead stated:
"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."
119 S. Ct. at 2189.
(4)
Olmstead encourages a continuum of service options for disabled persons - home,
community and institutional:
In addressing the issue of when a disabled person's care may be changed
from institutional placement to community placement, the Olmstead decision set
forth a three part test to determine if community placement is appropriate:
(a) the State's treatment professionals have determined that
community
placement is appropriate;
(b) the transfer from
institutional care to a less restrictive setting is not
opposed by the affected individual; and
(c) the placement can
be reasonably accommodated, taking into account resources
available to the State and the needs of others with mental
disabilities."
119 S. Ct. at 2181
(5)
People with mental retardation, especially individuals with severe and
profound mental retardation, and their families have vastly different support
requirements than those with physical disabilities. As families age, their
abilities to be
the primary care givers (and fiscal intermediaries) will also
change.
Arkansas should continue its continuum of services for each stage of
care-giving.
We are families and friends of
disabled persons who support the full continuum of residential options required
by the disability community and addressed by Olmstead. For many years, Arkansas
has offered competent and compassionate care through its state-operated and
private intermediate care facilities. In recent years, the state has also
offered support for families who care for their disabled children at home and
has steadily increased its support of community-based services (through the home
and community-based waiver).
Author:
William F. Sherman, Esq.
