Olmstead at 15: The Legacy of a Landmark Case
June 27, 2014 09:31 AM
Overview of Olmstead
June 22 marked the 15th anniversary of the Supreme Court decision, Olmstead vs. L.C.
Facts of the Case. The Plaintiffs, Lois Curtis and Elaine Wilson, had developmental disabilities and mental illness. The Plaintiffs had originally been admitted voluntarily to state-run Georgia Regional Hospital, in the psychiatric unit. After receiving medical treatment, state mental health employees recommended that both Plaintiffs should be treated in a community, rather than institutional, setting. However, both remained in Georgia Regional Hospital for several years, and in 1995 both sued Georgia under the Americans with Disabilities Act (ADA) for their release.
Holding. On June 22, 1999, the Supreme Court held that Title II of the ADA requires persons with mental disabilities to be placed in community settings and not institutions when
“Such action is in order when the State’s treatment professionals have determined that community placement is appropriate,
[T]he transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and
[T]he placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.”
Despite the Olmstead decision, many cases regarding unwarranted institutionalization and denial of home and community-based services (HCBS) are still being litigated. The following are some of the cases that have been litigated in the past year alone.
Florida. In July 2013, in U.S. v. Florida, the Department of Justice (DOJ) filed a lawsuit against the State of Florida in the United States District Court. The DOJ alleged Florida violated the ADA and the Olmstead decision by placing nearly 200 disabled children in nursing homes, when less restrictive HCBS would have been more appropriate. According to the Complaint, factors contributing to an increase of institutionalization included declining HCBS reimbursement, a lack of HCBS openings in programs, the growth of the HCBS waitlist, and Florida’s reductions in necessary care. Factors contributing to a decrease in HCBS utilization included a lack of “meaningful opportunities” to move to HCBS, as well as insufficient screening for HCBS.
Georgia. In September 2013, in Hunter v. Cook, the United States District Court for the Northern District of Georgia Atlanta Division, issued an order to the Georgia Department of Community Health (GDCH) to prevent it from providing less than 18 hours per day of skilled nursing care to two severely disabled children (the Plaintiffs). This followed attempts by Georgia to cut hours for the Plaintiffs. The Plaintiffs are beneficiaries of Early and Periodic Screening, Diagnostic and Treatment services (EPSDT). Additionally, they are enrolled in the Georgia Pediatric Program (GAPP), which the Order defined as “a Georgia Medicaid program that provides continuous skilled nursing care to medically fragile children.” The Court found that Georgia had participated in “unjustified institutional isolation” in violation of the ADA and the Olmstead decision.
New Hampshire. In December 2013, in Amanda D., et al. v. Wood Hasan, et al. (formerly Lynn E. v. Lynch), the State of New Hampshire entered into a class action settlement agreement with the DOJ and mental health care recipients and advocacy organizations to provide new community mental health services. As a result, New Hampshire must expand community mental health services over the next six years, including mobile crisis teams, housing and employment services. In February 2014, the settlement was approved by presiding judge Steven J. McAuliffe of the U.S. District Court.
New Mexico. In January 2014, in Waldrop, et al v. New Mexico Human Services Department et al, seven adult plaintiffs and their legal guardians, along with Disability Rights New Mexico and the Arc of New Mexico, filed a lawsuit against New Mexico. Specifically, the Complaint alleged loss of services for beneficiaries of the state’s Home and Community Based Waiver program for people with developmental disabilities following New Mexico’s overhaul of the DD Waiver. The parties held a settlement conference in April, and efforts to settle the case are ongoing.
Illinois. In February 2014, in N.B., et al., v. Hamos, the United States District Court for the Northern District of Illinois granted class action status to nine children with behavioral or emotional disorders who were denied HCBS. In the Amended Complaint, the Plaintiffs allege that Illinois violated provisions of the Social Security Act, the ADA, and the Rehabilitation Act. Specifically, the Plaintiffs allege that that Illinois denied medically necessary services through EPSDT, and that the Plaintiffs face unnecessary institutionalization.
New York. In March 2014, in U.S. v. New York, presiding judge Nicholas Garaufis of the United States District Court of the Eastern District of New York approved a settlement agreement entered into January 2014 between New York and the DOJ. As a result, New York must transition all residents with serious mental illness out of New York City “impacted” adult homes and into community housing and supportive services over the next five years. In April 2014, New York disclosed that it has allocated $30 million for implementing this settlement.
For more Olmstead-related cases, click here.
Olmstead vs. L.C. suggested that the state could comply with Title II of the ADA, if, among other things, it “were to demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings.” In the wake of this decision, many states developed such “Olmstead plans.” As of May 2013, twenty-seven states had Olmstead plans, with an additional eighteen states having alternative strategies.
Olmstead vs. L.C. also suggested that the state could comply with Title II of the ADA if, among other things, it “were to demonstrate that it hadâ€¦a waiting list that moved at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated.” According to sources cited in a January 2014 study released by the Department of Health and Human Services (HHS) and Mathematica Policy Research, while there were currently 3.3 million 1915(c) HCBS waiver enrollees nationwide in 2009, by 2011, “a little over half a million people” were on waiting lists nationally, with an average wait time to receive services at approximately two years.
Overall. Despite the Olmstead decision, many states have a long way to go to rebalance their long-term services and supports (LTSS) expenditures and populations into home and community-based services (HCBS). According to an April report by the Centers for Medicare and Medicaid Services and Truven Health Analytics (the Report), in federal fiscal year (FFY) 2012, Medicaid spent nearly half (49.5 percent) of its $140 billion LTSS spend on HCBS. HCBS expenditures as a percentage of total LTSS expenditures remained relatively constant from 2010 and 2011, which both had rates of 48 percent. HCBS expenditures as a percentage of total LTSS expenditures had risen from 24 percent in 1997, to 30 percent in 2002, and to 41 percent in 2007. For the full 1995-2012 trend, see figure 3, here.
Most rebalanced states. The Report also reflects that, during FFY 2012, 23 states (including Washington, D.C.) saw Medicaid HCBS expenditures account for over 50 percent of total Medicaid LTSS expenditures, while seven of those states saw such rates at over 60 percent, and two of those states saw rates over 70 percent. The states with the top five rates were Oregon, Minnesota, Alaska, Vermont, and Arizona.
Most rebalanced population. In FFY 2012, rebalancing was the most pronounced among the developmentally disabled population; 70 percent of Medicaid LTSS spending in this group was in HCBS. The states that had rebalanced the most successfully with regard to their developmentally disabled population were Arizona, Michigan, Oregon, and Maryland (each with 100 percent rebalancing rates), and Vermont with a 99.2 percent rate. For a synopsis of the Report’s rebalancing statistics, see a recent Council brief,here.
Since the release of the CMS/Truven report mentioned above, AARP released its 2014 Long Term Scorecard. In it, it ranked states according to the percent of new Medicaid Aged/Disabled LTSS users first receiving services in the community in 2009. According to the Scorecard, the highest performing states were Alaska (81.9 percent), Minnesota (80.3 percent), New Mexico (78.8 percent), District of Columbia (74.2 percent), and Idaho (73.0 percent). For the full list, see Exhibit A10 on page 75, here.
For information on Senator Tom Harkin’s Community Integration Act, introduced this month in the wake of the anniversary ofOlmstead, click here.
The Olmstead decision made home care a civil right. While Olmstead was a significant victory for the disabled community and for home and community-based services generally, subsequent litigation and statistics of states that have not achieved rebalancing towards HCBS show that the full potential of Olmstead has yet to be realized.
These trends give a greater urgency to providers to continue advocating for mechanisms to improve access to HCBS services through their state associations, as well as through state and federal governments. Stakeholders should give special attention towards HCBS reform for the elderly and physically disabled populations. Home care providers are encouraged to keep abreast of HCBS developments in their states, and nationally, and to contact the Council with any questions or concerns.
For more on the 15th anniversary of Olmstead, please see NAHC Report, June 25, 2014.