Eight years after Olmstead

presentation by Cathy Chambless

University of UtahCenter for Public Policy & Administration

January 2, 2008

Olmstead v. L.C and E.W. –

handed down in June 1999 – one of the most momentous U.S.

Supreme Court decisions affecting community living for people with disabilities.

8 Years after the Olmstead Decision

Overview of the Olmstead decision and legal framework

Key issues the courts have tackled since the decision

Key executive branch policies since Olmstead

Review promising practices around the country

Discuss participants experience in influencing policy

The Court interpreted the ADA’s “most integrated setting” provision to define the rights of people with disabilities in regard to institutionalization.

A covered (public) entity must make reasonable modifications in its program and activities to avoid discrimination, unless it can show that making the modification would fundamentally alter the nature of its service, program or activity.

The Decision established two legal principles fundamental to public services for persons with disabilities:

1. Medically unnecessary institutionalization of persons with disabilities who desire to live in the community is illegal discrimination.

2. Public entities have a legal obligation to remedy such discrimination through reasonable modification to public programs and services.

Eight years after Olmstead the environment has shifted in important ways.

There has been measurable progress in adapting housing, transportation and health care programs to the needs of persons with disabilities

This progress is evident not only in courts but in emerging federal and state legislative investments in community integration.

COURT ISSUES

Reasonable modification vs. fundamental alteration The ADA requires “reasonable modification”

under Title II

Courts cannot compel states to make “fundamental alterations”.

Fundamental alterations in a program’s requirements and design are indispensable to its essential nature.

Courts may find a proposed modification reasonable when a state is shown to have a history of waiving its own requirements and program rules.

Changes that are fundamental alterations need advocacy for long term reform efforts and prioritization.

Changes that are reasonable modifications can be more readily accomplished within a relatively short time frame through either formal or informal public agency action.

Statement in ADA final rule

“Integration is fundamental to the purposes of the ADA. Provision of segregated accommodations and services relegates persons with disabilities to second class status.”

Court majority opinion Gave some boundaries to state’s obligations:

1. Decision to provide public services at all is state discretion2. States cannot be required to make an accommodation if it would mean a potentially harmful reduction in services to other needy persons w. disabilities.3. If a State develops an effective “comprehensive plan” to transfer persons with disabilities out of unnecessary institutional care into the community, the state could defend itself against a claim that it violated community integration mandate.

Courts will look at the broader context

Examining the needs of all persons with disabilities.

How states are doing since Olmstead. . .

State Medicaid Expenditures: Nursing Home v. Community

80.4 71.4

30.6 38.6

0%

20%

40%

60%

80%

100%

1999 2006

CommunityNursing home

Gold, S. (2007, December)

Defining reasonable pace

Many reasonable pace cases raise a similar issue to Medicaid “reasonable promptness” claim

Measuring community integration

None of the post Olmstead cases deals with what is integrated.

Cases from other areas of disability law suggest that courts will use a balancing test to arrive at an answer.

Role of individual assessments

Community integration is required “when the state’s treatment professionals have determined that the community placement is appropriate. . .”

Two types of assessments:1) “Liberty assessments” - when an individual

lives in an institution and seeks community integration, and 2)“Coverage” assessments - when an individual seeks benefits or resources necessary to support a decision to live in the community.

Olmstead’s legacy in the courts

1) Courts are aware of the limits of their own powers and will intervene when the totality of the facts suggest stagnation and lack of movement.

2) When courts see forward motion – even if the forward motion is slow – they are more inclined not to interfere with the state decision. When courts are convinced that the issues amount to program redesign rather than program administration, they definitely do not interfere.

EXECUTIVE BRANCH ISSUES

Olmstead’s Legacy in the policy-making process

In the past 8 years considerable interest and movement at both the federal and state levels of government.

It is in these policymaking settings that the fundamental changes integral to the broad goals of the ADA but beyond the reach of the courts can take place.

Policy development and implementation processes

Gain critical importance in gauging progress toward community integration.

Key executive branch policies since Olmstead

Federal policy statements

During the Clinton administration, five joint “State Medicaid Director letters” were issued providing guidance on complying with Olmstead.

Federal community integration initiatives

• The Bush Administration, in response to the Olmstead decision, launched the New Freedom Initiative,

a comprehensive plan aimed at ensuring that all Americans have the opportunity to participate fully in community life.

Congress in 2000 created a federal grant program

Real Choice Systems Change Grants for Community Living • to create infrastructure and service

options necessary for long-term community integration.

Why Medicaid is integral to achievement of ADA

1. Medicaid’s accessibility regardless of health status.

2. Breadth of coverage and protections against high our of pocket expenditures.

3. Medicaid is increasingly investing in home and community based waiver services. Medicaid spending on HCBS service increased exponentially from 37% to 66% of all spending on community services between 1992 and 2001.

4. The rules of coverage are unlike those that typically are found in commercial insurance arrangements.

Promising practices in states and local communities

Housing

Illinois – Homeownership Coalition for People with Disabilities and Community Service Options, Inc Home Options.http://hcbs.org/files/73/3624/Promising_Practices-edited.pdf

The Massachusetts Accessible Housing Registry Issue: Housing Vacancy Information for People with Disabilities http://hcbs.org/files/39/1940/MAHousingRegistry.pdf

Promising Practices in HCBS: South Carolina - Home Modifications Specialisthttp://www.hcbs.org/files/117/5843/SCHomeMods.pdf

Housing and Urban Development (HUD ) and MFP

Housing Authorities may implement both the Money Follows the Person legislation and the Presidents' New Freedom Initiative. http://www.hud.gov/offices/pih/publications/medicareinitiative.pdf

Federal Housing Assistance for People with Disabilitieshttp://www.disabilityinfo.gov/digov-public/public/DisplayPage.do?parentFolderId=118

Transportation

United We Ride – coordinated transportation an Executive Order issued by President Bush in 2004 http://ici.umn.edu/products/impact/183/over6.html

Health care

Money Follows the Person Initiatives of the Systems Change Grantees: MFP in Texas http://hcbs.org/files/96/4769/MFP.pdf

Wisconsin - Home and community based service availability after leaving nursing home.http://hcbs.org/files/67/3330/Wisconsin_--_HCBS_Availability_Update.pdf

Colorado – Transitioning Clients with Mental Illness from Colorado Nursing Facilitieshttp://hcbs.org/files/126/6253/CONFT.pdf

Personal Assistance

Washington State – http://hcbs.org/files/82/4092/WashingtonStateMedicaid.pdf

Kansas - Mike Oxford, exec of Topeka IL Resource Center. Received only Real Choice Systems change grant that was planned, implemented and controlled by and for people with disabilities. This ‘consumer controlled independent living model’ provides evidence of the efficacy and importance of consumer control in the development of state policy initiatives.

Direct Service Workforce Demonstration grants

Arkansas - Department of Human Services implemented the Direct Service Community Workforce (C-CARE) initiative.

Employment/Volunteering

Understanding Enrollment Trends and Participant Characteristics of the Medicaid Buy-In Program, 2003-2004http://www.mathematica-mpr.com/publications/PDFs/understandenroll.pdf

Maine - Legislative Report: Media/Outreach Campaign Strategies for Employment of Individuals with Disabilities in Mainehttp://hcbs.org/files/111/5522/LD_570,_Part_C_Report.pdf

Discussion

How have you been involved in your state and community around these issues?

References

Gold, S (2007, December). Progress since Olmstead: How is your state doing? Information bulleting #231.

Holt, J, Jones, D. Petty, R. & Christensen, H. (2006, October). ABCs of Nursing Home Transition. Independent Living Research Utilization.

References 2 Rosenbaum, S. & Teitelbaum, J (2004, June).

Olmstead at Five: Assessing the Impact. Kaiser Commission on Medicaid and the Uninsured. The Henry J. Kaiser Family Foundation.

Rosenbaum, S., Teitelbaum, J., Mauery, D., Steward, A. (2003, February) Reasonable modification or fundamental alteration? Recent developments in ADA caselaw and implications for behavioral health policy. Center for Health Services Research and policy, school of public health and health services, The George Washington University Medical Center.

References 3 PAS Center at University of California at San

Francisco (UCSF) http://pascenter.org/olmstead/

Clearinghouse for Community Living Exchange Collaborative http://hcbs.org/

Federal Housing Assistance for People with Disabilities http://www.disabilityinfo.gov/digov-public/public/DisplayPage.do?parentFolderId=118