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Residential Choice and the Olmstead Decision

I. Message to State Policymakers

The U. S. Supreme court decision in Olmstead v. L.C., reinforced the rights of individuals with mental retardation, and their parents and guardians, to choose the residential setting that is best for these persons. Unfortunately some people are misinterpreting the Olmstead decision as favoring the elimination of Intermediate Care Facilities for the Mentally Retarded (ICF/MR). To support this mistaken view they rely on selected parts of a letter of January 14, 2000 from the U.S. Department of Health and Human Services (DHHS). VOR believes it is time to set the record straight on what the Supreme Court actually said, because it affects the lives and well being of many thousands of people with disabilities.

In support of their objective to downsize and close ICF/MR settings, certain advocates are ignoring key statements in the Court's decision. They do not report the Court's endorsement of institutions for those who need them or choice as a guiding principle for placement. Instead, these advocates emphasize portions of the Court's opinion regarding "unjustified institutionalization" and the requirement that the states must not endeavor to keep their institutions fully populated. The Court said those things in the context of a decision that recognizes institutions are needed and that individual choice must be honored.

Olmstead challenges states to prevent and correct unjustified institutionalization, while also ensuring that all individuals with disabilities and their families are able to choose from among an array of residential options. Olmstead stands for reasoned choice.

In keeping with the spirit and letter of Olmstead and DHHS guidance, which clearly endorse choice in residential options, VOR asks advocates, policymakers and legislators to focus all energies on the development of expanded community-based and ICF/MR options for those individuals languishing on the waiting list. Estimates indicate that over 200,000 individuals with mental retardation and other disabilities are awaiting services.

VOR's Mission is to ensure that every individual with mental retardation receives appropriate quality services and supports in the setting of his/her choice. Despite the obvious needs of people waiting for services, advocates continue to demand removal of ICF/MR residents from their homes. That is not a reasonable way to take care of the needs of those who are receiving no assistance.

The following overview aims to help advocates, policymakers and legislators to understand what Olmstead and DHHS require. It is our hope that advocacy at the state and national level can be re-directed in a more productive and unified way.

II. Olmstead v. L.C., 119 S. Ct. 2176 (1999) - Talking Points

a. The Supreme Court decided Olmstead v. L.C., 119 S. Ct. 2176 (1999) on June 22, 1999.

b. The Supreme Court in Olmstead held that unjustified placement of people with disabilities in institutions constitutes a form of discrimination based on disability prohibited by Title II of the Americans with Disabilities Act and its accompanying integration regulation. 119 S. Ct. at 2185.

c. Olmstead set forth a three part test to determine if community placement is appropriate (i.e., institutionalization is unjustified):

"(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 the resources available to the State and the needs of others with mental disabilities."

119 S. Ct. at 2181.

d. 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.

"Unjustified isolation, we hold, is properly regarded 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.

e. The plurality opinion in Olmstead stated:

"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’ [this citation taken directly from VOR’s Amici Curiae brief]." 119 S. Ct. at 2189.

f. The plurality opinion in Olmstead stated:

"To maintain a range of facilities and to administer service with an even hand, the State must have more leeway than the courts below understood the fundamental-alteration defense to allow. If, for example, the State were to demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated, the reasonable-modification standard would be met." 119 S. Ct. at 2189.

g. Olmstead challenges states to prevent and correct unjustified institutionalization, while also ensuring that all individuals with disabilities and their families are able to choose from among an array of residential options. Olmstead stands for reasoned choice.

III. U.S. Department of Health and Human Services January 14, 2000 correspondence

In several communications dated January 14, 2000, DHHS urged state governments to implement the Olmstead decision, giving its own interpretation of the Olmstead requirements. One letter sent to all State Medicaid Directors endorsed many of the Olmstead principles including:

"nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings." [Jan. 14 letter to State Medicaid Directors from DHHS, p. 2].

"Significantly, the Court suggests that a State could establish compliance with title II of the ADA if it demonstrates that it has: a comprehensive, effectively working plan for placing qualified persons with disabilities in less restrictive settings, and a waiting list that moves at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated." [Jan. 14 letter to State Medicaid Directors from DHHS, p. 2].

The letter goes on to say: "no one should have to live in an institution or a nursing home if they can live in the community with the right support. Our goal is to integrate people with disabilities into the social mainstream, promote equality of opportunity and maximize individual choice."

An enclosure with the letter entitled "Developing Comprehensive, Effectively Working Plans" offered technical assistance to help states "increase access to community-based services for individuals with disabilities by developing comprehensive, effectively working plans for ensuring compliance with the ADA."

The DHHS letters and subsequent state presentations by the Office of Civil Rights, which place greater emphasis on deinstitutionalization than on addressing the waiting list crisis, have resulted in hostile actions (i.e., threatened lawsuits) at the state level by advocates opposed to the ICF/MR (a/k/a institutional) option. If successful, these activities will place medically-fragile and/or behaviorally challenged individuals with severe mental retardation at grave risk.

For more information please contact Tamie Hopp at 605-399-1624 voice; 605-399-1631 fax; and vor@compuserve.com.

VOR * 836 S. Arlington Heights Rd., #351 * Elk Grove Village, Illinois * 60007

877-399-4VOR ph. * 847-253-0675 fax * tamie327@hotmail.com