12 Years after Olmstead

Twelve years ago, the Supreme Court issued a decision in Olmstead v. L.C., a case about two women in Georgia who were institutionalized despite their preference for community-based living.  The Court held that the ADA prohibits the unjustified segregation of individuals with disabilities (meaning, public entities have an obligation to provide community-based living, not institutions, for individuals with disabilities wherever possible.) 

Just this past week, the Department of Justice - charged with enforcing the ADA - issued a statement re-enforcing its position on Olmstead's requirements that individuals with disabilities be integrated into community living as fully as possible.  You can read the report here, and I've summarized some of the key points below:



1. Individuals with disabilities are entitled to integrated living.  Integrated living is an arrangement (such as independent housing with support services), that enables the individual to participate in civic and social life, live as independently as possible, and interact with non-disabled people.  Segregated settings, by contrast, are often isolated locations where individuals with disabilities must follow a routine not of their choosing, only interact with other people with disabilities,

2. Budget cuts are not an excuse.  A huge risk these days is cuts by states to their budgets - say, the elimination or reduction of community services specifically designed for individuals who would be institutionalized without such services.  I like what the DOJ says specifically on this point: "In making such budget cuts, public entities have a duty to take all reasonable steps to avoid placing individuals at risk of institutionalization.  For example, public entities may be required to make exceptions to the service reductions or to provide alternative services to individuals who would be forced into institutions as a result of the cuts.  If providing alternative services, public entities must ensure that those services are actually available and that individuals can actually secure them to avoid institutionalization."  Also note that a state's obligations under Olmstead are independent of its obligations under its Medicaid plan (so, even if a state caps its Medicaid plan, or cuts the budget, its obligations under Olmstead still stand).

3. States violate Olmstead requirements all the time.  Per the Olmstead decision, each state was to draft a plan (now referred to as an Olmstead plan) detailing how the state would transition from a predominantly institution-based care system to one with more options, including community- and home-based care.  Well, check out this incredibly informative website: As of 2011, there are 20 states, plus D.C., that have no plan.  That in itself should be grounds for a complaint.  But what's the remedy?  What's the stick that the DOJ can wield against states not in compliance?  I don't see one, other than the withholding of federal funds?  That'd be popular.

I think it's great that the DOJ has issued this guidance, and is affirming its commitment to enforce the ADA and principles of integration.  I think it is truly sad, however, that we are still talking about how to enforce a 12 year old decision that hasn't been adequately enforced in the years since.  Yes, meaningful change takes time - but I think enough is enough.  There are so many horrific stories about what goes on behind institutional walls that we, as a society, need to say *enough*.  Let's get serious about protecting individuals with disabilities, and providing them with meaningful choices and living options.