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From the Sept./Oct. 1999 issue of Mouth magazine.

What the Court Decided
in Olmstead


by Stephen Gold

Copyright 1999 Free Hand Press.

These are attorney Steve Gold's preliminary thoughts on the Supreme Court's decision in Olmstead v. L.C. They are adapted and edited from his posting on the ADAPT website. The author has reviewed and approved Mouth's changes. Gold was attorney for Helen L. in Helen L. v. Didario, the forerunner of the Olmstead case.

The Olmstead decision should be read in the context of the twentieth century's early decades when states throughout the country created institutions for people with disabilities. During the remainder of the century, states expanded their institutions - whether nursing homes, mental institutions, or habilitation centers for people with developmental disabilities.

Now, for the first time, the U.S. Supreme Court has held that the Americans with Disabilities Act's "integration mandate" must be followed in long-term community services and supports.

Under the ADA, according to the Court in Olmstead, "unjustified placement or retention of persons in institutions, severely limiting their exposure to the outside community, constitutes a form of discrimination."

According to the Court's majority opinion in Olmstead, "unjustified institutional isolation is properly regarded as discrimination based on disability.... [It] reflects two evident judgments. First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life....

"Second, confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment."

In Olmstead, the Court ruled that states must "avoid [this] unjustified isolation" unless the "reasonable modifications" would "fundamentally alter the nature of the service, program, or activity." The "fundamentally alter" regulation existed before the Olmstead decision; the Supreme Court made one major change to it.

Before Olmstead, it was enough to compare the state's costs of placing a person in an institution to its costs of community supports. Because it was less expensive for L.C. and E.W. to receive supports in the community, the two lower courts had held that there was no "fundamental alteration" in the state's program.

After the Supreme Court's Olmstead decision, that simple comparison is not enough. "Sensibly construed," the Court said, "the fundamental-alteration component... would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable" when taking into account the State's cost of maintaining a large number of people with a range of services in a range of settings.

This language could be read to mean that one person's freedom has no value in the courts if allowing that person to leave a state-funded institution would bring that institution's budget to the breaking point.

Even so, the states must, in order to use the "fundamentally alter" defense, affirmatively prove that their programs, services, activities - as reflected in the allocations of state resources - are "evenhanded" and ensure a "full range" of services.

Since states must prove they administer services "with an even hand." We will be able to show a state's bias toward institutional care by showing the ratio of its institutional expenditures to its community expenditures.

The Court ruled that states must also prove that they "maintain a range of facilities." While the Court did not elaborate, we believe this means a full range of services, a range which offers real choice. As can be seen from the comparison of institutional versus in-home services, most states have a "range" so lopsided that people cannot choose to live in the community. Few if any states currently offer real choice. State plans for integration

The Court also ruled that to be able to rely on the "fundamentally alter" defense, a state must prove it has a "comprehensive, effectively working plan for placing [qualified people with disabilities] in less restrictive settings" than an institution.

The disability rights movement would like to know what state has any plan, let alone either a "comprehensive" or an "effectively working" one to move people out of nursing homes and other institutions. A state must affirmatively show how, who, and when people will be moved out of institutions. We don't believe states can make any such showing.

We believe that states must, using organizations of people with disabilities such as ADAPT, centers for independent living, self-advocacy organizations and psychiatric survivor groups identify all people who wish to leave institutions. Not a single state is doing that today.

We believe, and the Department of Justice has confirmed, that states must develop their plans for integrating institutionalized people into the community in collaboration with people with disabilities.

We also believe that states must develop home-and community-based services to meet the needs of people leaving nursing homes and other institutions.

About waiting lists . . .

The Court ruled that a state may have a waiting list, but required that a waiting list "move at a reasonable pace." Again according to the Court, this pace cannot be controlled by "the State's endeavors to keep institutions fully populated."

The disability rights movement believes that reasonable pace should be determined by organizations of people with disabilities. One test of "reasonableness" would be exactly how many days your Governor would want to live in an institution or a nursing home.

Reprinted from Mouth magazine, September-October 1999.

Read Steve Gold on integration, the ADA, more.


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