by Steve Gold
Since Congress enacted the Americans with Disabilities Act (ADA) in1990, people with disabilities have demanded nationwide, "Enforce our civil rights," and "Our homes, not nursing homes." Now, in the case Olmstead v. L.C., the United States Supreme Court will decide whether the ADA will be a "civil rights statute" that enforces the rights of the disabled community and a means to achieve home-based services.
The background and context for both the Americans with Disabilities Act (ADA) and the Supreme Court show how far the country has come in the past 10 years. The ADA requires that "a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." To fail or to refuse to comply with "the most integrated setting" requirement is discrimination against people with disabilities. It is no different than if an employer says she/he will not hire a person with a disability or a landlord says he/she will not rent to a person with a disability.
The "most integrated setting" requirement has become the battle cry for the disabled community and Olmstead v L.C. is its landmark case. The "integration" mandate has become the foundation for the national movement to prevent the unnecessary segregation of people with disabilities. It is the basis for "freeing" people from unnecessary institutionalization in nursing homes and other institutional settings. In the Olmstead case, if the Supreme Court rules in favor of the two plaintiffs, it will be the basis both for preventing people from going into institutions and for helping people obtain the necessary community-based services they need to remain in their communities and homes.
The "most integrated" movement was started by Americans with Disabilities Attendant Programs Today (ADAPT), the national group of people with disabilities that has struggled to "free our people" from nursing homes. ADAPT has had two fronts-on the streets with organizing and political action, and in the courts. The legal action started when ADAPT of Pennsylvania went to a Philadelphia nursing home in 1992 and met Idell Smith, a 47-year-old mother of two teenagers, who was in the nursing home solely because Pennsylvania refused to provide attendant care services for her in the community. The state argued that its state-funded attendant care program had a "waiting list," and Smith would have to remain unnecessarily segregated pending this list.
Smith argued that it was discrimination and a violation of the ADA to require her to be unnecessarily institutionalized in the nursing home as a condition to receive services she needed to survive-for example, assistance with personal hygiene, transferring, and preparing food. Smith wanted to live at home and asked the state to "move the money from the institution's pocket to the community's pocket." The state paid nearly $35,000 for her care in the nursing home. In the community, it would cost about $10,000.
The Third Circuit Court of Appeals ruled in favor of Smith, ordering Pennsylvania to move the money and provide her with appropriate services in the community. Because of that lawsuit, the state applied to the Health Care Financing Administration (HCFA) for a medical-assistance attendant-care waiver. Today, Smith (and many others) lives with her children in the community.
The Olmstead case was brought on behalf of two women who were dually diagnosed with mental illness and developmental disabilities. [Editor's Note: See "Summary of Supreme Court's Decision" at left] Both were, according to the state's own treating professionals, unnecessarily segregated and unnecessarily institutionalized in a state mental hospital. The state argued that there was a "waiting list" for community services and it was the "state's right" to decide who would receive and when a person would receive community-based services. Rather than provide the two women with community-based services, the state kept the women institutionalized. After the two women argued that the "most integrated" mandate applied, the Eleventh Circuit Court of Appeals agreed with the plaintiffs, both of whom now live in the community.
The Supreme Court will decide whether the "most integrated" mandate really means what these two Circuit courts said it means. People with disabilities have given notice to HCFA, governors, and medical assistance directors. No matter what the Supreme Court decides, ADAPT and its representatives throughout the country will not stand for unnecessary segregation and unnecessary institutionalization of people who are disabled.
About the Author: Steve Gold is an attorney with the Public Interest Law Center in Philadelphia, PA.