ODDC- Olmstead v L.C.

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TITLE: Olmstead v L.C.: Implications for Family Caregivers

AUTHOR: Sara Rosenbaum, J.D.

The ADA AND OLMSTEAD: The article discusses the relationship between the ADA, especially Title II, and the medically unjustified institutionalization of persons with disabilities. Title II requires public agencies to ensure that services are furnished in the most integrated setting appropriate to the needs of the qualified individuals with disabilities. The law defines discrimination as the failure by public entities and public accommodations to make reasonable modifications in existing programs and services, when such modifications are necessary to afford services or accommodations to individuals with disabilities, unless the entity can demonstrate the making of such modification would "fundamentally alter" nature of the goods and services in question.

In Olmstead, the Supreme Court held that unjustifiable institutionalization of persons with disabilities is discrimination, because it compels them to receive care in institutions, while persons without disabilities receive their care in the community settings. The Court set forth a framework for the lower courts to use to fashion remedies.

A state "generally" may "rely on the reasonable assessments of its own professionals" in determining if individuals are eligible to live in community setting;
To accommodate community placement, a state needs to make reasonable accommodations, but not "fundamental alterations" in its services and programs. A court must consider the interests of the entire group of person with disabilities for whom community services are appropriate and those for whom institutional placement is appropriate;
The state has the burden of proof as to whether a proposed modification amounts to a "fundamental alteration." Several factors are relevant; the cost of providing services to the individual in the most integrated setting appropriate; the resources available to the state; and how providing services affects the state’s ability to meet the needs of others with disabilities who need institutional care;
A state must take affirmative steps to put the holding into action.

IMPLICATIONS FOR FAMILY CAREGIVERS: Family caregivers should focus on two levels of public response

The broader process of state planning and program redesign. The Olmstead decision emphasized the importance of an "effectively working" plan for overall implementation.
The use of the individual assessment process to respond to individual needs and achieve the program and service modifications for integration and community residence. In PGA Tours v. Martin, the court clarified that deciding whether an alteration is a reasonable modification versus a fundamental alteration turns on the facts of each case.

Particular concerns to family caregivers may be:

The ability of programs to pay families to provide support and assistance normally furnished by agencies and unrelated assistance. If lawful under statute, paying family members for service delivery would probably be constructed as a "minor alteration" not a "fundamental alteration;"
The extent to which Medicaid eligibility is restructured to permit eligibility in home and community residential setting. Previous decisions on Medicaid and the ADA suggest that a state can be ordered to expend additional funds to provide prompt coverage for both institutional and community services listed in the plan. But they predate the Martin decision, therefore it is undetermined whether a state is required to add one or more classes of community services to a state Medicaid plan would be "reasonable modification" or a change that alters an "essential aspect" or gives persons with disabilities a competitive advantage;
How the Olmstead decision affects people with Alzheimer’s disease and other forms of dementia, which makes home and community residential arrangements complex to achieve;
How Olmstead will assist aging parents caring for adult children with MR/DD;
Whether Olmstead create the potential to force families to furnish inadequately support in-home care in lieu of other forms of assistance.

QUESTIONS ABOUT THE INDIVIDUAL ASSESSMENT PROCESS: Although the Court was clear on the need for an individual assessment process in PGA Tours v. Martin, it did not address several issues:
- Who is eligible to seek an assessment? Only people currently in institutions? Or those at risk of an inappropriate institutionalized as well?
- How long can a person be made to wait for an assessment?
- Who may conduct an assessment, and what professional qualifications must the person have?
- What must be covered? What factors are relevant and permissible in light of the ADA?
- Must a written a decision follows an assessment, with an opportunity for review? If so, who bears the burden of proof, the state or the individual?
- If community placement is determined to be appropriate, what is the slowest "reasonable pace" that a state can pursue?
- At what point do flaws in a state’s own process mean the state may no longer "generally rely" on it? What substitute process must be used?
COMPLIANTS: As of June 2001, approximately 275 complaints have been filed with the Office of Civil Rights of the Health and Human Services Department. Two out of three complaints came from persons living in institutions, adults mainly living in nursing homes. Among the community complaints, half live their family, a third live without a family and the remainder live an a situation that could not be determined.

PRESIDENTIAL EXECUTIVE ORDER:On June 18, 2001, President Bush issued Executive Order 13217 affirming the United States’ commitment to community-based programs that foster independence and participation in the community. The order reiterates the ADA’s integration mandate, the controlling nature of Olmstead decision and the "swift implementation" of all decisions.

CONCLUSION: There is still much unknown about the scope and timeline for Olmstead implementation but it is clear that it has had a profound impact on how policymakers understand the ADA and its protections for person with disabilities. It is equally clear that while the process may take long, the decision will permanently change the lives of people with disabilities because it is based on the ADA. Finally, family involvement is central to creating community services that work.

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