Eight years after Olmstead

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Eight years after Olmstead

• presentation by Cathy Chambless
• University of Utah
• Center for Public Policy Administration
• January 2, 2008

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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.

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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

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• The Court interpreted the ADAs most integrated
  setting provision to define the rights of people
  with disabilities in regard to institutionalizatio
  n.

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• 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.

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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.

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

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• 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.

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COURT ISSUES
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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 programs
  requirements and design are indispensable to its
  essential nature.

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

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• 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.

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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.

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Court majority opinion

• Gave some boundaries to states obligations1.
  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.

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Courts will look at the broader context

• Examining the needs of all persons with
  disabilities.

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How states are doing since Olmstead. . .
Gold, S. (2007, December)
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Defining reasonable pace

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

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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.

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Role of individual assessments

• Community integration is required when the
  states treatment professionals have determined
  that the community placement is appropriate. . .
  
• Two types of assessments
• 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.

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Olmsteads legacy in the courts

• 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.
• 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.

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EXECUTIVE BRANCH ISSUES
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Olmsteads 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.

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Policy development and implementation processes

• Gain critical importance in gauging progress
  toward community integration.

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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.

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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.

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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.

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Why Medicaid is integral to achievement of ADA

• Medicaids accessibility regardless of health
  status.
• Breadth of coverage and protections against high
  our of pocket expenditures.
• 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.
• The rules of coverage are unlike those that
  typically are found in commercial insurance
  arrangements.

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Promising practices in states and local
communities
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Housing

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

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

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

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• 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/medica
  reinitiative.pdf

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• Federal Housing Assistance for People with
  Disabilitieshttp//www.disabilityinfo.gov/digov-p
  ublic/public/DisplayPage.do?parentFolderId118

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Transportation

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

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Health care

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

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

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• Colorado Transitioning Clients with Mental
  Illness from Colorado Nursing Facilitieshttp//hc
  bs.org/files/126/6253/CONFT.pdf

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Personal Assistance

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

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• 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.

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Direct Service Workforce Demonstration grants

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

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Employment/Volunteering

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

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• Maine - Legislative Report Media/Outreach
  Campaign Strategies for Employment of Individuals
  with Disabilities in Mainehttp//hcbs.org/files/1
  11/5522/LD_570,_Part_C_Report.pdf

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Discussion

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

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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.

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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.

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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?parentFolderId118