Olmstead
OLMSTEAD: PROTECTING THE RIGHTS OF ALL INDIVIDUALS WITH
INTELLECTUAL AND DEVELOPMENTAL DISABILITIES
INTELLECTUAL AND DEVELOPMENTAL DISABILITIES
The Supreme Court’s decision in Olmstead v. L. C.[1] has been frequently misrepresented as a mandate for inclusion, a simple, one-sided declaration that all individuals with I/DD must live in community-based settings.[2] A statement on the website of The Arc of Illinois[3] is typical, referring to the state’s “obligation to serve individuals with disabilities in the least restrictive environment as required by the U.S. Supreme Court’s ruling under Olmstead.” This is not true, as there is no inclusion mandate in Olmstead. Rather, the Court’s determination in Olmstead supports both the right to an inclusive environment and the right to institutional care, based on the needs and desires of the individual. Olmstead guarantees choice for all individuals, their parents, and guardians. It also requires that those who are moved from institutional care to smaller, community-based group homes meet three distinct criteria to determine the appropriate residential setting.
There is no mandate to deny access to institutions, to close institutions, nor to place at risk any individuals who need and choose institutional care.
The Supreme Court recognized the need for States to maintain a range of facilities
for the diverse needs of persons with developmental disabilities:
“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.” [4]
“We emphasize that nothing in the ADA[5] 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.” [6]
The majority opinion revealed the need for standards in determining the appropriate level of care:
''Consistent with these provisions, the State generally may rely on the reasonable assessments of its own professionals in determining whether an individual 'meets the essential eligibility requirements ' for habilitation in a community-based program. Absent such qualification, it would be inappropriate to remove a patient from the more restrictive setting.” [7]
The Court set conditions before the State is required to move individuals to the community:
“[U]nder Title II of the ADA, States are required to provide community-based treatment for persons with mental disabilities [1] when the State's treatment professionals determine that such placement is appropriate, [2] the affected persons do not oppose such treatment, and [3] the placement can be reasonably accommodated , taking into account the resources available to the State and the needs of others with mental disabilities. “ [8]
A plurality of Justices concurred:
“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. . . Some individuals . . . may need institutional care from time to time 'to stabilize acute psychiatric symptoms’. . . For other individuals, no placement outside the institution may ever be appropriate…for these persons, institutional settings are needed and must remain available.” [9]
In his concurring opinion, Justice Anthony Kennedy warned about the possibility of tragic consequences for residents of facilities like STS if the ADA is misinterpreted:
“It would be unreasonable, it would be a tragic event, then, were the American with Disabilities Act of 1990 (ADA) to be interpreted so that States had some incentive, for fear of litigation, to drive those in need of medical care and treatment out of appropriate care and into settings with too little assistance and supervision.” [10]
“In light of these concerns, if the principle of liability announced by the Court is not applied with caution and circumspection, States may be pressured into attempting compliance on the cheap, placing marginal patients into integrated settings devoid of the services and attention necessary for their condition.” [11], [12]
[1] Olmstead v. L. C., 527 U.S. 581 (1999)
[2] The Arc of Nebraska, November 22, 2019. https://www.arc-nebraska.org/olmstead_plan_comments
[3] https://www.arc-nebraska.org/olmstead_plan_comments.
[4] ibid, at 597
[5] The American Disabilities Act, passed on July 26, 1990. The ADA’s “integration regulation” states: “a public entity must administer services, programs, and activities in the most integrated, least restrictive setting appropriate to the needs of qualified individuals with disabilities.” [28 C.F.R. § 35.130(d)].
[6] ibid, at 601-602
[7] ibid, at 602
[8] ibid, at 607
[9] ibid, at 604-605
[10] ibid at 610
[11] ibid at 610
[12] (italics added in all quotes)
There is no mandate to deny access to institutions, to close institutions, nor to place at risk any individuals who need and choose institutional care.
The Supreme Court recognized the need for States to maintain a range of facilities
for the diverse needs of persons with developmental disabilities:
“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.” [4]
“We emphasize that nothing in the ADA[5] 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.” [6]
The majority opinion revealed the need for standards in determining the appropriate level of care:
''Consistent with these provisions, the State generally may rely on the reasonable assessments of its own professionals in determining whether an individual 'meets the essential eligibility requirements ' for habilitation in a community-based program. Absent such qualification, it would be inappropriate to remove a patient from the more restrictive setting.” [7]
The Court set conditions before the State is required to move individuals to the community:
“[U]nder Title II of the ADA, States are required to provide community-based treatment for persons with mental disabilities [1] when the State's treatment professionals determine that such placement is appropriate, [2] the affected persons do not oppose such treatment, and [3] the placement can be reasonably accommodated , taking into account the resources available to the State and the needs of others with mental disabilities. “ [8]
A plurality of Justices concurred:
“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. . . Some individuals . . . may need institutional care from time to time 'to stabilize acute psychiatric symptoms’. . . For other individuals, no placement outside the institution may ever be appropriate…for these persons, institutional settings are needed and must remain available.” [9]
In his concurring opinion, Justice Anthony Kennedy warned about the possibility of tragic consequences for residents of facilities like STS if the ADA is misinterpreted:
“It would be unreasonable, it would be a tragic event, then, were the American with Disabilities Act of 1990 (ADA) to be interpreted so that States had some incentive, for fear of litigation, to drive those in need of medical care and treatment out of appropriate care and into settings with too little assistance and supervision.” [10]
“In light of these concerns, if the principle of liability announced by the Court is not applied with caution and circumspection, States may be pressured into attempting compliance on the cheap, placing marginal patients into integrated settings devoid of the services and attention necessary for their condition.” [11], [12]
[1] Olmstead v. L. C., 527 U.S. 581 (1999)
[2] The Arc of Nebraska, November 22, 2019. https://www.arc-nebraska.org/olmstead_plan_comments
[3] https://www.arc-nebraska.org/olmstead_plan_comments.
[4] ibid, at 597
[5] The American Disabilities Act, passed on July 26, 1990. The ADA’s “integration regulation” states: “a public entity must administer services, programs, and activities in the most integrated, least restrictive setting appropriate to the needs of qualified individuals with disabilities.” [28 C.F.R. § 35.130(d)].
[6] ibid, at 601-602
[7] ibid, at 602
[8] ibid, at 607
[9] ibid, at 604-605
[10] ibid at 610
[11] ibid at 610
[12] (italics added in all quotes)
Olmstead v. LC can be downloaded at:
https://supreme.justia.com/cases/federal/us/527/581/
More resources are available at:
https://www.vor.net/get-help/more-resources/item/olmstead-resources-2
https://supreme.justia.com/cases/federal/us/527/581/
More resources are available at:
https://www.vor.net/get-help/more-resources/item/olmstead-resources-2