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The National Association of Protection and
Advocacy Systems (NAPAS) issued a report on how well states are complying with
the mandates of the landmark Supreme Court ruling in the case of Olmstead vs. L.
C on July 25. In the wake of the Court’s decision the Department of
Health and Human Services (HHS) issued guidance to the states urging that they
develop a plan for compliance that follows certain key principles.
The NAPAS report points out that
according to disability rights advocates states are aware of the Olmstead
decision and have expressed their intention of complying with the mandates. The
report also points out, however, that Olmstead is not a top priority for the
states and implementation is sluggish at best. In fact, not one state has an
Olmstead plan that meets HHS recommendations. Adults and children with
disabilities remain in institutions and nursing homes against the advice of
their treatment teams who say that community placement is appropriate. Also,
waiting lists for community placement continues to grow rather than decrease in
size.
The Olmstead decision is important
because it affirms the Americans with Disabilities Act (ADA) requirement that
services be provided in the most integrated setting appropriate to the needs of
the individual. The Court stated
directly that Unjustified isolation...is properly regarded as discrimination
based on disability.”
Under the Court’s decision, states are
required to provide community-based services for persons with disabilities who
would otherwise be entitled to institutional services when treatment
professionals determine that such placement is appropriate, the affected person
does not object to community placement, and the placement can be reasonably
accommodated. The Court suggested
that a state could establish compliance with Title II of the ADA if it has a
comprehensive plan for placing qualified persons with disabilities in less
restrictive settings, and a waiting list that moves at a reasonable pace not
controlled by the State’s efforts to fill long-term care beds.
While most states have taken preliminary
steps to comply with the HHS suggestions not one has a plan that fully complies
with the stated principles for plan development from HHS. The HHS
recommendations are that states provide an opportunity for affected individuals
or their representative to be integral participants in plan development, take
steps to prevent unjustified institutionalization of individuals with
disabilities, ensure the availability of community based services, afford
affected people and their families the opportunity to make informed choices
regarding community based services and provide sound management to support
implementation of the plan.
Seven states have either an executive
order or a legislative resolution that requires the development of an Olmstead
compliance plan. Alaska and 13
other states are developing or have drafted a plan. The fear with these states
is that absent a legislative resolution or an executive order there is a risk
that the state could change its position and decide not to implement the HHS
suggestions. Another important difference between these two groups is that among
the second group only about half are seeking input from the disability
community. In Alaska CIL staff and members of the Disability Law Center are
interviewing nursing home residents and will seek their input. Twelve states are
reviewing their existing practices to see how they can best comply with
Olmstead. Nine other states have looked at their programs for people with
disabilities and are of the opinion that they are already in substantial
compliance. In many instances this position is at odds with the thinking of
disability rights advocates. Many advocates believe that their states are
stalling when it comes to full compliance with the Olmstead mandates.
Thirty-four states reported increased
funding for community supports and services since the Olmstead ruling. In most
states, however, these increases are unrelated to state attempts to comply with
Olmstead, but reflected normal increases through the appropriations process.
Most advocates report that the increases have been small compared to the number
of people identified as waiting to receive appropriate community services.
Advocates are not sure that there is
enough input from affected individuals and their representatives. States that
have developed draft plans without initial consumer input have received the most
criticism from advocates. In many states people with disabilities have been
placed on Olmstead task forces, which are charged with developing a plan or
recommendations on the best means of complying with Olmstead.
Advocates will have to wait to see the final plans from these states to
judge how the disability community input affected the compliance plans.
State efforts up to this point have
focused primarily on individuals with developmental disabilities. Advocates
report that only a handful of states have begun to develop even the framework of
a plan to move unnecessarily institutionalized individuals with mental health
needs to appropriate community settings. Other states do not even address the
needs of the mental health community in their plans.
Still other states are developing slower time frames for addressing the
mental health community. There is also a lag in addressing the needs of
unnecessarily institutionalized people with physical disabilities.
Several states have taken action that
undermines the Olmstead mandate. These states have signed onto an amicus brief
in a case before the Supreme Court that calls into question the
constitutionality of the ADA. This case, Garret vs. University of Alabama, asks
whether the Congress had the Constitutional Authority to enact the ADA. If the
Court says Congress did not, individuals with disabilities may no longer be able
to enforce Titles I and II of the ADA, including the ADA integration mandate
upheld in Olmstead.
The final conclusion of the report is
that while some states have begun the process of implementing Olmstead, there
is, as always much more to do before the promise of the Supreme Court’s ruling
becomes a reality. Advocates are advised to assess whether the voluntary
compliance strategy is working in their state and whether additional steps
should be undertaken to ensure that the recommendations of the HHS are met.
The
full text of the report can be found at the Protection and Advocacy Systems web
site www.protectionandadvocacy.com.
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