Community Based Services

The Slow Growth in Community-Based Services After Olmstead

This article discusses the background and aftermath of Olmstead v. L. C., often acclaimed as one of the most important judicial decisions in the past decade on community-based services and disability rights.

The Olmstead Decision

The Olmstead litigation began 12 years ago, when two women with developmental disabilities sued the Georgia State Commissioner of Human Resources, Tommy Olmstead. The two women had been voluntarily treated in a state psychiatric unit. Eventually, they wanted to be treated in a less restrictive, community-based setting, but Georgia refused to accommodate them based on a lack of adequate resources and placements.

The issues in Olmstead had broad potential impact on the disability community, especially when the case reached the U. S. Supreme Court. The NSCIA joined in a friend-of-the-court brief filed with the high court, and many of its members also lobbied their states' attorneys general to formally withdraw their support for Georgia's position. Originally, 26 states had filed a brief supporting Georgia's appeal, but over half of them later withdrew under pressure from the NSCIA and other disability organizations.

In 1999, the Supreme Court issued its landmark ruling. Olmstead v. L. C., 527 U.S. 581 (1999). In a 6-3 decision written by Justice Ruth Ginsburg, the Court held that Title II of the Americans with Disabilities Act (ADA) required that the two women receive care in the most integrated setting that was appropriate. The Court found that the unwarranted isolation of persons with disabilities in institutions was discriminatory. According to the Court, such segregation unduly hampered social contacts and opportunities for employment, education and recreation. In addition, such discrimination wrongly perpetuated unjustified assumptions that disabled persons were not capable of fuller participation in the community.

The Court in Olmstead advised how states might ensure compliance with the ADA in the future. The Court ruled that states must make "reasonable accommodations" in long-term care systems, but need not make "fundamental alterations" to the delivery of services. States must balance the cost of providing community-based care to individuals against the obligation to serve others fairly as well.

The "Integration Mandate" Since Olmstead

Olmstead was acclaimed as a far-reaching victory in the disability community. An analysis of court decisions after 1999, however, is not encouraging. Most courts interpreting Olmstead have ruled against various ADA challenges. The courts have ruled in favor of states as long as they can prove that they are "actively engaged" in attempting to integrate individuals into the community, even if progress has been slow.

While most states have created so-called "Olmstead plans" addressing unnecessary institutionalization, little has been done to implement these plans. Funding for most of these initiatives has been sparse because of general budget pressures. In addition, states have been reluctant to develop new community-based services linked to the closure of institutional beds. As a result, the expansion of programs in the community has generally been considered a cost drain, rather than a means of realizing potential savings.

Most of the progress in implementing Olmstead has occurred in those jurisdictions which have been sued. Litigation remains one of the most effective ways to combat the unnecessary segregation of disabled individuals.

One example is the case of Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175 (10th Cir. 2003). In Fisher, disabled individuals in a community-based Medicaid program sued Oklahoma officials who stopped providing them medically-necessary prescriptions benefits. The plaintiffs argued that ceasing to offer them subsidized prescriptions, while continuing to provide such benefits to disabled persons in institutionalized settings, unfairly placed persons in community-based programs at high risk for premature entry into nursing homes. The 10th Circuit Court of Appeals agreed that the plaintiffs' claim appeared to violate both the ADA and Olmstead and reinstated their cause of action.

The ruling in Fisher, while rendered by a Circuit Court, is nonetheless very fact-specific and of limited application. Broader legislative initiatives will be necessary if progress after Olmstead is going to be faster and less incremental.