What is Olmstead? Protecting Children from Being Forced into Institutions 2016-11-16T08:37:42+00:00

What is Olmstead?
Protecting Children from Being Forced into Institutions

When the Americans with Disabilities Act passed in 1990, everyone knew it would be a game changer. But there is one sentence in the Act that likely affects your child the most on a day-to-day basis that you may not even know about. It simply states,

Goods, services, facilities, privileges, advantages, and accommodations shall be afforded to an individual with a disability in the most integrated setting appropriate to the needs of the individual.

While utterly simplistic, the implications are profound. It means that every service—including any services you receive from the government—must be given to you in the most integrated setting, which has largely been interpreted to mean the community.

Disability advocates interpreted this passage to mean that any citizen who was living in an institution or who was at risk of being institutionalized should have the right to live in the community with appropriate supports and services. In 1999, a case entitled Olmstead vs. L.C. was heard by the Supreme Court and was decided in favor of the plaintiffs. This Supreme Court decision now guarantees people with disabilities the right to live in community settings.

Olmstead in a Nutshell

The two plaintiffs in the Olmstead case were Lois Curtis and Elaine Wilson, who both had mental illness and developmental disabilities. They lived in a psychiatric unit at Georgia Regional Hospital, a public state-run facility. Even after their medical teams determined they were able to live in the community, they remained in the hospital for years. They ultimately filed suit against the Georgia Department of Human Resources, who failed to provide them with a community living option.

The Ruling

The ruling, which was offered by Judge Ruth Bader Ginsburg, reads as follows:

[W]e conclude that, under Title II of the ADA, States are required to provide community-based treatment for persons with mental disabilities when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.

While this specific case discussed mental disabilities, the decision applies to any individual who would be considered disabled under the Americans with Disabilities Act. What this means in sum is that states MUST offer a community living option to anyone with a disability under these circumstances:

  1. The individual is able to live in a community setting with appropriate services and supports
  2. The individual wants to live in a community setting
  3. The state can provide community living services with reasonable modifications, taking into account its resources and the services being provided to other individuals with disabilities

Fundamentally, discrimination against individuals on the basis of disability is illegal. Discrimination against people with disabilities could include a state refusing to provide services unless a person is in an institution, a state refusing to offer a choice of community care to an individual or group with a particular type of disability, or a state refusing to provide services in the community when experts say community care is the most integrated setting.

Implications of Olmstead

Most importantly, Olmstead guarantees a community living option for individuals with disabilities, as long as the modifications the state needs to make to support an individual in the community are considered “reasonable.” In most cases, community living ends up being less expensive than institutional care, and thus is almost always considered to be “reasonable” in nature.

In addition, Olmstead protects individuals who are already living in the community from forced institutionalization. If, for example, a state tries to take away a group’s home and community based services program and removal of the program would cause institutionalization, the Olmstead decision can be used to require the state to continue providing home and community based services. This is particularly true if institutionalization would be more costly than community care, which is almost always the case.

Another aspect discussed in the Olmstead decision is the use of waiting lists. Many states offer home and community based services but have extensive waiting lists for them. The Olmstead decision suggests that a waiting list would have to move rapidly and have a plan for quick removal of individuals on the waiting list in order to remain within the law. Several recent Olmstead-related cases have addressed this very issue, with it playing a key role in a recently settled case in Virginia for people with developmental disabilities.

Finally, Olmstead uses as a benchmark for reasonableness the treatment, services, and programs of other people with disabilities in the state. As such, it makes it impossible for states to discriminate against one group of people with disabilities while providing services for another group of people with different disabilities. While this aspect of Olmstead has mostly been used to require states to provide community based services for people with mental illness and other mental disorders, it can also be used to address disparities for children with physical disabilities, autism, or other often-excluded disabilities.

Olmstead’s Impact on Children with Disabilities

Children represent a unique group of people with disabilities because of their legal standing as minors. Benefits and services for minors take into consideration the physical, emotional, and financial support system of the parent(s) or guardian(s). Parents or guardians are expected to care for their dependent minor children, whether they are disabled or not, and as such, dependent minor children are evaluated in the context of their family situation. Unlike anyone over the age of majority (typically age 18), minor children are not fundamentally eligible for community services based solely on their disability. Instead, their family income is included in their eligibility evaluation, and many children are excluded from services because their families make too much money.

Social Security Administration Law, however, does require that states extend Medicaid eligibility and associated services to children who reside in institutions, including hospitals, on a long-term basis. This is because children residing in institutions are evaluated using institutional deeming rules, while children living at home are evaluated using community deeming rules. This institutional bias means that states are required by federal law to pay for a child’s care in an institution, but do not have to pay for it in a home or community based setting.

In order to address this issue, virtually all states have Medicaid waivers, TEFRA programs, or similar other programs that offer benefits and services to children with disabilities who do not qualify because their families make too much money.

Several of these programs are currently at risk in states such as Illinois and Utah, and Olmstead will likely be used to protect these children’s services. A state cannot discontinue a program for children if cutting or modifying the program would force institutionalization of children.

Thus far, this aspect of Olmstead has not been tested, and it remains to be seen how courts will interpret the use of Olmstead for minor dependent children.

Olmstead Litigation

Currently there are nearly a hundred Olmstead-related cases that have been tried, settled, or are in process throughout the United States. These cases are leading to dramatic changes throughout the United States, with many states moving individuals with disabilities out of institutions and into the community with appropriate services and supports. We hope that in the near future home and community based services will be the norm for all people with disabilities, in large part due to the historic Olmstead decision.

Author: Susan Agrawal • Date: 5/21/2012

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