Olmstead Resources
“One Size Does Not Fit All” is Protected by the Supreme Court Decision
Olmstead v. L. C., 527 U.S. 581 (1999)
The Supreme Court, in its landmark Olmstead v. L.C. ruling, recognized the need for a range of services which respond to the varied and unique needs of the entire disability community: “We emphasize that nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings...Nor is there any federal requirement that community-based treatment be imposed on patients who do not desire it.” 119 S. Ct. 2176, 2187 (1999).
Olmstead Protects Individual Choice and Recognizes the Need for Higher Levels of Care
Individuals with intellectual and developmental disabilities (I/DD) are far too frequently finding life-sustaining services pulled out from under them by agencies charged with the duty to protect them – namely state departments of developmental disabilities and protection and advocacy organizations. They attempt to use the law as a weapon against the community of people with disabilities instead of the tonic it is meant to be.
These agencies tell the public and lawmakers, wrongly. that the Americans with Disabilities Act (ADA) and the U.S. Supreme Court Olmstead decision require “de-institutionalization” and “community integration,” regardless of individual need and choice. We are told that “least restrictive environment” in all cases means small community settings, even when many individuals with I/DD cannot be safely served in such settings and/or they choose the higher level of care provided in large facilities, such as Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICFs/IID), facility-based day programs and sheltered workshops.
Don’t be fooled by this deception, and don’t let your elected representatives be fooled either. Olmstead’s majority and concurring opinions take great care to stress that “institutions” such as ICFs/IID are a critical part of a range of services that a state must provide to meet the needs of the diverse community of people with mental disabilities. Olmstead recognizes that there are individuals who desire and require a higher level of care for whom “institutions” must remain available. Olmstead also states that the wishes of individuals are paramount in determining residential placement.
The importance of individual choice, including for some the choice of “institutional care,” is repeated throughout Olmstead’s majority opinion as follows:
“Such action (community placement) is in order when the State’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated taking into account the resources available to the State and the needs of others with mental disabilities.” (Emphasis added.)
“But we recognize, as well, the States’ need to maintain a range of facilities for the care and treatment of persons with diverse mental disabilities, and the States’ obligation to administer services with an even hand.”
“We emphasize that nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings...Nor is there any federal requirement that community-based treatment be imposed on patients who do not desire it.”
“As already observed...the ADA is not reasonably read to impel States to phase out institutions, placing patients in need of close care at risk...Nor is it the ADA’s mission to drive States to move institutionalized patients into an inappropriate setting...”
“For other individuals, no placement outside the institution may ever be appropriate...for these persons, institutional settings are needed and must remain available.”
“For these reasons stated, we conclude that, under Title II of the ADA, States are required to provide community-based treatment for persons with mental disabilities when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” (Emphasis added.)
In his concurring opinion to Olmstead, Justice Anthony Kennedy warned against its misinterpretation, specifically pointing to state agencies. Kennedy states in Part I of his concurring opinion, which Justice Stephen Breyer joined, that:
“It would be unreasonable, it would be a tragic event, then, were the American with Disabilities Act of 1990 (ADA) to be interpreted so that States had some incentive, for fear of litigation, to drive those in need of medical care and treatment out of appropriate care and into settings with too little assistance and supervision.”
Justice Kennedy then quotes from the majority opinion,
“Justice Ginsburg’s opinion takes account of this background. It is careful, and quite correct, to say that it is not “the ADA’s mission to drive States to move institutionalized patients into an inappropriate setting...” (Emphasis added.)
Justice Kennedy concludes,
“In light of these concerns, if the principle of liability announced by the Court is not applied with caution and circumspection, States may be pressured into attempting compliance on the cheap, placing marginal patients into integrated settings devoid of the services and attention necessary for their condition.” (Emphasis added.)
Justice Kennedy’s warning has sadly proven prophetic for developmentally disabled citizens around the country who have been forced out of their chosen ICF/IID homes, facility-based day programs and sheltered workshops because of real or perceived threats of litigation, oftentimes from federally-funded protection and advocacy agencies set up to protect our most vulnerable citizens.
Olmstead is not a decision to be feared by individuals seeking specialized services for their unique needs connected to their intellectual and developmental disabilities. Congress demonstrated this fact when it recognized the importance of considering individual choice based on need in ADA (Olmstead) enforcement activities in this December 2014 Report language to accompany the Consolidated and Further Continuing Appropriations Act of 2014:
"Deinstitutionalization.-There is a nationwide trend towards deinstitutionalization of patients with intellectual or developmental disabilities in favor of community-based settings. The Department [of Justice] is strongly urged to continue to factor the needs and desires of patients, their families, caregivers, and other stakeholders, as well as the need to provide proper settings for care, into its enforcement of the Americans with Disabilities Act." [Conference Report to accompany the Consolidated and Further Continuing Appropriations Act, 2014(for Commerce, Justice, Science, and Related Agencies, p. 17) (December 2014)].
Olmstead embraces options. Its careful and responsible findings respect the diversity inherent in the community of people with mental disabilities and seek to ensure that all people receive safe, appropriate, and individually-driven services.
Caroline A. Lahrmann
Disability Advocacy Alliance, Co-Founder
Protecting the Rights of All Individuals with Intellectual and Developmental Disabilities
Olmstead v. L. C., 527 U.S. 581 (1999)
The Supreme Court’s decision in Olmstead v. L. C. [527 U.S. 581 (1999)] has been frequently misrepresented as a mandate for inclusion, a simple, one-sided declaration that all individuals with intellectual and developmental disabilities (I/DD must live in community-based settings. This is not true. There is no inclusion mandate in Olmstead. Rather, the Court’s determination in Olmstead supports both the right to an inclusive environment and the right to institutional care, based on the need and desires of the individual. Olmstead guarantees choice for all individuals, their parents, and guardians. Olmstead requires that those who are moved from institutional care to smaller, community-based group homes meet three distinct criteria to determine the appropriate residential setting. There is no mandate to deny access to institutions, to close institutions, nor to
place at risk any individuals who need and choose institutional care.
The Supreme Court recognized the need for States to maintain a range of facilities for the diverse needs of persons with developmental disabilities:
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"Unjustified isolation, we hold, is properly regarded as discrimination based on disability. But we recognize, as well, the States' need to maintain a range of facilities for the care and treatment of persons with diverse mental disabilities, and the States' obligation to administer services with an even hand." 1
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“We emphasize that nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings. . . Nor is there any federal requirement that community-based treatment be imposed on patients who do not desire it." 2
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The majority opinion revealed the need for standards in determining the appropriate level of care:
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''Consistent with these provisions, the State generally may rely on the reasonable assessments of its own professionals in determining whether an individual 'meets the essential eligibility requirements ' for habilitation in a community-based program. Absent such qualification, it would be inappropriate to remove a patient from the more restrictive setting." 3
The Court set conditions before the State is required to move individuals to the community:
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"[U]nder Title II of the ADA, States are required to provide community-based treatment for persons with mental disabilities [1] when the State's treatment professionals determine that such placement is appropriate, [2] the affected persons do not oppose such treatment, and [3] the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. " 4
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A plurality of Justices concurred:
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"As already observed [by the majority], the ADA is not reasonably read to impel States to phase out institutions, placing patients in need of close care at risk. . . Some individuals . . . may need institutional care from time to time 'to stabilize acute psychiatric symptoms’. . . For other individuals, no placement outside the institution may ever be appropriate…for these persons, institutional settings are needed and must remain available.”" 5
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In his concurring opinion, Justice Anthony Kennedy warned about the possibility of tragic consequences for ICF residents if the ADA is misinterpreted:
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“It would be unreasonable, it would be a tragic event, then, were the American with Disabilities Act of 1990 (ADA) to be interpreted so that States had some incentive, for fear of litigation, to drive those in need of medical care and treatment out of appropriate care and into settings with too little assistance and supervision.” 6
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“In light of these concerns, if the principle of liability announced by the Court is not applied with caution and circumspection, States may be pressured into attempting compliance on the cheap, placing marginal patients into integrated settings devoid of the services and attention necessary for their condition.” 7, 8
1 Olmstead v. L. C., 527 U.S. 581, at 597
2 ibid, at 601-602
3 ibid, at 602
4 ibid, at 607
5 ibid, at 604-605
6 ibid, at 610
7 ibid, at 610
8 (emphasis added on all quotes)