RESEARCH INFORMATION ON INDEPENDENT LIVING
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Volume 2, Issue 8

Olmstead & State Plans

The Olmstead court decision promotes personal assistance services even though it doesn't explicitly say states must provide home and community services.

Title 11, Section 12132 of the Americans With Disabilities Act (ADA) of 1990 says: “. . .no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

Olmstead v. L.C. (527 U.S. 581 (1999) has been one of the most significant ADA cases to define states’ care obligations. It was the first to disregard costs and resulted in active state planning to move eligible people out of institutions into the community. Before the decision, the ADA required placement only if institutional care was less expensive than community supports.

The Olmstead case initially had been brought on the behalf of Lois Curtis and Elaine Wilson, two women patients with both mental retardation and psychiatric conditions in an Atlanta, Georgia, state hospital. Their lawyer argued that Georgia violated Title II of the Americans With Disabilities Act by failing to place them in community-based programs. Rejecting arguments about costs, the court ruled that unnecessary institutional segregation constituted discrimination based on disability and cannot be justified by a lack of funding.

The Court’s said states are required to offer a choice of community settings rather than only institutions when community placement is appropriate, the individual does not oppose the transfer from institutional care to a less restrictive setting, and the placement can be reasonably accommodated.

States, the court ruled, must have comprehensive plans to move more people with disabilities out of institutions and into the community. States were told to move at a reasonable pace to provide community-based alternatives and also to maintain a range of care facilities, including institutions for those who need them.

The President issued a June 18, 2001 executive order directing federal agencies to assist states with Olmstead implementation and to comply with ADA’s “most integrated setting” requirement. Since then, although nothing in the Olmstead decision changes the Medicaid program, individual benefits, or state obligations, the decision has caused states to strongly focus on their Medicaid policies and program choices regarding long-term care, because states use so much of their Medicaid money on long-term care.

Tracking Olmstead progress, The National Conference on State Legislatures reported by 2002 that 42 states plus the District of Columbia have task forces, commissions, or state agency work groups to assess current long-term care systems. Twenty-one states have issued Olmstead plans, and 12 more said they would within the year. Several states said they were working on Olmstead-related activities rather than comprehensive plans.

The Center for Health Care Strategies, Inc., in October 2002 identified only 14 states with Olmstead plans in progress and rated the plans on stakeholder involvement, individual assessment, information to affected individuals, baseline information, and quality assurance plans.
Several states enacted legislation, some of which has been influenced by lawsuits. In Colorado, for instance, legislation now allows senior citizens to receive a direct payment through vouchers to buy services. Florida residents in Medicaid waiver programs can hire a service provider of their choice.

Insufficient state budgets and declining state revenues have delayed and will continue delaying implementation plans, but many states used federal systems changes grants to jumpstart their efforts. The National Association of Protection and Advocacy Systems reported in its 2002 Three-Year Olmstead v LC Progress Report that money is available to help states make change, but states will continue to need funding. Implementation is likely to diminish in time, which means disability rights advocates have to track progress and put pressure on states not aggressively implementing Olmstead.

Besides funding, states face lack of accessible, affordable transportation and housing. Other issues requiring attention include high turnover of personal attendants, home health aides, and nursing assistants, information and assessments, data collection, funding following individuals, waiting list reduction, employment opportunities, and quality care, found the National Conference on State Legislatures.

To find how states approached home- and community-based care, researchers from the U.S. General Accounting Office selected Kansas, Louisiana, New York, and Oregon and asked four local case managers in each state to offer services to the same made-up clients in 2002. New York and Oregon spent the most on home- and community-based services and had the most hours of home care. Kansas case managers offered fewer hours of in-home care than the other states. If out-of-home care was indicated, Oregon was the only state that consistently recommended adult foster care or assisted living rather than nursing home care.

ADAPT, a disability rights organization, rated Washington, DC, and these nine states the worst in providing community supports in 2002 and 2003: Louisiana, Mississippi, Illinois, Indiana, Tennessee, Nevada, New Jersey, Ohio, and Georgia.

For those and other states wanting to develop community long-term support systems, the Center for Medicare & Medicaid Services (CMS) established http://www.cms.gov/promisingpractices to help states share "promising practices" of innovative programs usually supported by a combination of funding mechanisms.

Cindy Higgins, The Research and Training Center on Independent Living, The University of Kansas, 1000 Sunnyside Ave., Room 4089 Dole Center, Lawrence, KS 66045-7555, (785) 864-4095, E-mail: [email protected]. This project is funded by the National Institute on Disability Rehabilitation Research grant #H133A980048.

Information for this review came from the interactive Research Information on Independent Living (RIIL) database at www.GetRiil.org, which contains research summaries related to independent living with disabilities. A special effort has been made to include information that independent leaders in the field said they wanted, namely topics regarding accessible, affordable housing, effective advocacy for rural areas, effective transition from schools and nursing homes, accessible, affordable transportation, reaching underserved populations, policies that impede independent living, rural health care services, and Medicaid/Medicare regulations for durable equipment.

RIIL is a joint effort of the Research and Training Center on Independent Living at the University of Kansas and the Independent Living Research Utilization (ILRU) Program of TIRR