• Lawsuits where it is claimed that the program’s criteria for eligibility is discriminatory;
• Lawsuits involving an eligible person claiming a program is being administered in a discriminatory fashion.

Eligibility criteria: Relevant evidence includes:

• Whether the change affects the nature and purpose of the program or merely a peripheral function;
• The degree to which the program already has waived its own rules;
• The number of individuals previously not deemed qualified who would be permitted to participate; and
• Whether the program’s purposes can be achieved through means that are not so exclusionary.

Services for eligible persons: The critical issue appears to be whether a court views the limits as an across-the-board matter of design or as a discriminatory method of administration.

In Rodriguez v. New York, the U.S. Court of Appeals for the Second Circuit rejected a request by persons with mental disabilities to cover cueing services under Medicaid, since persons with mental disabilities needed no physical assistance, the state refused to cover the service as an independent benefit.

In Fisher v. Oklahoma Health Care Authority, participants receiving Medicaid-financed community-based care challenged Oklahoma’s cost-saving attempt to limit their prescription drug benefits to five-per-month, while providing unlimited drugs to those receiving the same services in a nursing home. The plaintiffs claimed that a community care-based limit would essentially force them into an institutional environment, and that the continuation of an unlimited drug benefit would not amount to a fundamental alteration of the Medicaid program. The federal court agreed that the state’s fundamental alteration defense could not stand without more facts. The Fisher court also essentially narrowed the state’s use of a fundamental alteration defense by suggesting that such a defense did not exist when a benefit already existed somewhere in a state’s plan.

Defining Reasonable Pace: In applying Olmstead’s mandate for community integration, lower courts define the key question as whether the defendant public program has in place an "effectively working plan" of "community integration" that is moving at a "reasonable pace." If a court determines that the program has a plan to integrate people to community placement at a reasonable pace, it usually rules that the state is fulfilling the reasonable pace requirement and additional community integration reform will need to be sought out through legislative channels. At the same time, courts have demonstrated a willingness to demand far speedier movement in cases in which they concluded circumstances warranted such intervention. When defining "reasonable pace," courts seek guidance from three sources:

• The Olmstead decision itself and its interpretation of the ADA;
• Federal Medicaid law; and
• Other court decisions that have considered similar issues.

Medicaid recipients can have a similar claim, the "reasonable promptness" claim; a claim that benefits and services covered under a state’s Medicaid plan (either as a basic state plan service or as a supplemental waiver service) were not furnished with reasonable promptness. Under Medicaid, state agencies must "furnish Medicaid promptly to recipients without any delay caused by the agency’s administrative procedures." Courts have defined "reasonable pace" in part by analogizing to Medicaid’s "reasonable promptness" provision. In these cases, states have defended their administration of their community care programs under Medicaid waiver programs by presenting several arguments asserting that they have not violated the reasonable pace (or reasonable promptness) requirement.

• States have argued that courts are generally unable to quantifiably define "reasonable pace" and therefore cannot require specific state action within a specified time period. Courts have had little trouble rejecting this argument, generally finding that plaintiffs’ right to reasonably prompt medical assistance can be enforced.
• States have also claimed that insufficient funding from the legislative branch is a justifiable defense for not complying with the reasonable pace/reasonable promptness standard. Generally, courts have rejected the argument that insufficient funding was alone a proper reason for excessive waiting times to receive community services.
• States have argued that the reasonable promptness requirement applies only to mandatory Medicaid services, but not to non-mandatory community integration initiatives. According to this argument, because states initiate and administer these non-mandatory waiver programs at their option, individuals have no legal entitlement to such services, and they may not demand that the services be furnished with reasonable promptness. Several courts have rejected this argument, concluding that when a state chooses to provide optional waiver programs, the services become part of the state’s Medicaid plan and eligible individuals are entitled to both program services and the associated protections of the Medicaid Act.

Liberty assessments require the state’s assessment process to satisfy both the substantive considerations of the ADA while measuring the appropriateness of community integration and basic due process. Key constitutional due process cases involving the liberty of confined persons have certain elements of a fair threshold assessment process, including a process that is accessible to the individual and that the individual can seek out, with or without the discretion of the state. Qualified individuals with objective evidence, clinical observation, and assessment tools must do liberty assessments.

"Coverage" or "resource and benefit" assessments involve an individualized fact-finding process regarding what resources an individual needs to live in the community, and whether the state provides or could provide the resources with reasonable modification to how it administers programs and services. Thus, for example, if the individual can live in a community if certain types of housing services are available, the state’s task would be to examine its housing resources to determine if the service exists or could be developed through reasonable modifications in the housing programs it does offer. It should be noted that a coverage assessment could permissibly take into account the overall cost of the care requested, as long as a reasonable modification standard is used to ensure that modifications with modest cost implications are not overlooked.

• Develop and implement a comprehensive, effective working plan to serve people with disabilities in the most integrated setting appropriate;
• Provide opportunities for individuals with disabilities and their representatives to closely participate in the plan development;
• Take steps to prevent and correct current or future unjustified institutionalization.
• Ensure the availability of community integration services;
• Afford individuals with disabilities to opportunity to make informed choices;
• Take steps to ensure quality assurance, improvement and sound management.

Federal Community Integration Initiatives: The Bush Administration launched the New Freedom Initiative, a comprehensive plan that includes expanding educational opportunities; promoting homeownership; integration into the workforce; and expansion of transportation options. The initiative also included Executive Order 13217, requiring the Departments of Health and Human Services, Justice, Education, Labor, Housing and Urban Development, and the Social Security Administration, to coordinate use of existing resources and modify policies to encourage community integration.

The Department of Justice: Evaluated residential placements under the federal Civil Rights of Institutionalized Persons Act; devoted substantial resources to investigations and enforcement actions against developers, builders, architects, and site engineers who design and/or construct multi-family housing that does not comply with the requirements of the Fair Housing Act (FHA), and against rental offices and other places of public accommodation within housing complexes that do not comply with the ADA.

The Department of Labor: Office of Disability Employment Policy awarded $500,000 to eight recipients to provide home modifications for persons with disabilities.

Legislative: In 2000 Congress created the Real Choice systems Change Grants for Community Life to create infrastructure and service options necessary for long-term community integration. Since 2001 the Center for Medicare and Medicaid Services has awarded nearly $160 million in Real Choice grants to states and other eligible entities.

State Community Integration Initiatives and Plans: Twenty-nine states have issued Olmstead-related plans or reports and many rely on Medicaid community service options, with resources from other programs, to achieve the types of community programs that allow people with serious disabilities to live and work in their own communities. A review of the planning documents reveals a series of key community integration measures, including:

• Outcome-based measures: transitioning institutional residents to community care and elimination of waiting lists.
• Intermediate measures: building system and provider capacity and identifying housing, health care, and other community supports.