On June 22, the Supreme Court handed down its decision in the case of Olmstead v L.C. and EW. The Court summarized the opinion of Justice Ginsberg, who wrote for the majority. The Court found that, under Title II of the Americans with Disabilities Act (ADA), states are required to place persons with mental disabilities in community settings rather than in institutions when:
For the first time, the Supreme Court held that States long-term services must follow the ADA's integration mandate. Under the ADA, unjustified placement or retention of persons in institutions, severely limiting their exposure to the outside community, constitutes a form of discrimination. "States must avoid [this] unjustified isolation, unless the reasonable modifications would fundamentally alter the nature of the service, program, or activity."
The Court made a significant change in the interpretation of the ADA's fundamental alteration regulation. Before Olmstead, costs of the named plaintiff in an institution were compared to this individual's cost in the community. With this decision by the Supreme Court, the comparison is broadened to consider the state's programs overall. The Court said states must prove they administer services with an even hand. A state-by-state analysis of institutional versus community expenditures will show the institutional bias of existing services. Nationally, the split is 80% of funds to institutions, 20% to community services.
States must also prove they maintain a range of facilities. In most states, the range is so lopsided that there is no real choice to live in the community. To maintain a range of facilities, administer services with an even hand, and be able to use a fundamental alteration defense, a state must prove it has a comprehensive, effectively working plan for placing people with disabilities in less restrictive settings than an institution. What state even has a plan, let alone one that is either comprehensive or effectively working, to move people out of nursing homes or other institutions? A state plan may have a waiting list, but the Supreme Court required that this waiting list move at a reasonable pace. This reasonable pace cannot be controlled by the state's endeavors to keep institutions fully populated.