I sent the following to Ivan, hoping this decision can be applied in his
fight to remain in his home, and he suggested that I post it to the list
too. It actually goes hand in hand with the MiCassa legislation. Maybe
those with legal expertise could advise him further.
The Olmstead v. L.C. supreme court decision stated that unjustified
nursing home placement by a state is in violation of the ADA . There was
also a lower court case in Hawaii that found that Olmstead applies to
those at risk for institutionalization, not only those already in nursing
homes.
FROM: http://www.protectionandadvocacy.com/lcolmste.html.
Traumatic Brain Injury public policy site
January 24, 2000
The Policy Corner has lately been exploring some of the primary
issues we are working on for the 2nd Session of the 106th. This
week's edition provides some background relevant to our January
3rd edition on MiCASSA, the bill that, if passed, will ensure
that people of all ages who need long-term services and supports
have the right to choose to live in the community rather than
residing in a nursing home or other institution. It explores
perhaps the most significant decision yet under the Americans
with Disabilities Act (ADA), the civil rights act for people with
disabilities covered in the January 17, 2000 edition of the
Policy Corner.
Olmstead v. L.C. -- HCFA Issues Guidance to States on Compliance
with Olmstead and Title II of the ADA
The Olmstead decision, rendered by the Supreme Court last June
supplies not only a good argument in favor of MiCASSA, but
challenges states to modify their policies and practices ensure
that all people that need services receive them in the most
integrated setting appropriate and that people do not have to
wait unreasonable amounts of time to get services.
Overview: On June 22, 1999, the US Supreme Court ruled in
Olmstead v. L.C. that, under the Americans With Disabilities Act
(ADA),unjustifiable institutionalization of a person with a
disability who, with proper support, can live in the community is
discrimination. In its ruling, the Court said that
institutionalization severely limits the person's ability to
interact with family and friends, to work and to make a life for
him or herself.
The Olmstead case was brought by two Georgia women whose
disabilities include mental retardation and mental illness. At
the time the suit was filed, both plaintiffs were in state-run
institutions, despite the fact that their treatment professionals
believed they could be appropriately served in the community.
The Court based its ruling on sections of the ADA, as well as on
federal regulations that require states to administer their
services, programs and activities "in the most integrated setting
appropriate to the needs of qualified individuals with
disabilities" and said that:
* Unjustified institutionalization of people with disabilities is
discrimination and violates the ADA;
* States are required to provide community-based services for
persons with disabilities otherwise entitled to institutional
services when the state's treatment professionals reasonably
determine that community placement is appropriate; the person
does not oppose such placement; and the placement can reasonably
be accommodated, taking into account resources available to the
state and the needs of others receiving state-supported
disability services;
* A person cannot be denied community services just to keep an
institution at its full capacity; and,
* There is no requirement under the ADA that community-based
services be imposed on people with disabilities who do not desire
it.
HCFA Issues Guidance to States
In accordance with the ruling, the U.S. Department of Health and
Human Services' (HHS) Health Care Financing Administration (HCFA)
last week issued guidance to state Medicaid directors, reminding
states that they have an obligation under Medicaid to review
periodically the services of all residents in Medicaid-funded
institutions. It also reminds states that they may use their
Medicaid funds to provide appropriate services in a range of
settings, from institutions to fully integrated community
support.
HCFA also urged states to develop comprehensive working plans to
strengthen community service systems -- and to actively involve
people with disabilities and their families in the design,
development and implementation of such plans.
HCFA also encouraged states to take steps to prevent future
inappropriate institutionalization of persons with disabilities
and to assure the availability of community-based services.
Next Steps
To help states comply with the Court ruling, HCFA states that it
will make technical assistance available to states, and that it
will review relevant federal Medicaid regulations, policies and
previous guidance to assure that they, too are compatible with
requirements of the ADA and the Olmstead decision and that they
facilitate states' efforts to comply with the law.
So far, HCFA has laid out a number of guidelines to help state
plans comply with Olmstead and the ADA. If you would like details
on these guidelines, you may request them by return e-mail or by
contacting the BIA Policy Department at 703-236-6000, Ext. 103.
Stay tuned. We will hear a lot more about Olmstead, MiCASSA and
the whole issue of long-term services and supports as Congress
gets underway in Washington, DC, and, at the same time, Olmstead
begins to be implemented in the states.
Janna Starr Director of Public Policy; 6022 Sunnyview Rd. NE,
Salem, OR 97305; Ph. 503-375-6373, Fax: 503-375-6439;
[log in to unmask]
FROM http://www.protectionandadvocacy.com/HawaiiDistrict.htm
OLMSTEAD DECISSION
To: P&As and Interested Others
From: Elizabeth Priaulx, Community Integration Specialist
Date: December 15, 1999
RE: Hawaii District Court Applies Integration Mandate To Those At Risk of
Institutionalization
Hawaii District Court Applies Integration Mandate to Individuals
Living Outside of Institutions Who Are At Risk Of Institutionalization
On November 26, 1999, the U.S. District Court for the District of Hawaii
issued a decision in a case brought by the Hawaii P&A that adds to the
growing case law interpreting the Supreme Court's ruling in Olmstead v.
L.C. In Makin v. Hawaii, Docket No. CV 98-00997 DAE, a class action
brought on behalf of individuals with Mental Retardation living at home
without appropriate services,
the District Court held that the integration mandate of Title II applies
to persons at risk of institutionalization and not only to those already
institutionalized.
