Independent Living
In Brief: Olmstead v L.C. : Implications for Older Persons with Mental and Physical Disabilities
Research Report
Sara Rosenbaum, J.D., Harold and Jane Hirsh Professor, Health Law and Policy, The George Washington University Medical Center, School of Public Health Services
November 2000
The Supreme Court's 1999 decision in Olmstead v. L.C. ex. Rel. Zimring (Olmstead) arose under the federal Americans with Disabilities Act (ADA). The ADA prohibits public programs and public entities from discriminating against persons with disabilities. Olmstead's central holding is that the ADA prohibits states from unnecessarily institutionalizing persons with disabilities and from failing to serve them in the most integrated setting appropriate to their needs if the provision of community services represents a reasonable accommodation and not a fundamental alteration of public programs. This In Brief summarizes key findings of a recent AARP Public Policy Institute study that analyzes the Olmstead decision and considers its implications for persons with physical and mental disabilities, with a particular focus on older persons1.
The decision directly affects the Medicaid program because it focuses on the obligations of states toward persons with disabilities under the ADA in relation to their health budgets, which in turn are heavily funded by Medicaid. Because the ADA has no age limits, the case has as many implications for older persons with disabilities as for younger persons with disabilities.
Key findings of the report include:
- While Olmstead does not directly require a state to alter the basic design of its Medicaid and other programs, the decision appears to require reasonable alterations in the existing design where unnecessary institutionalization and segregation of persons with disabilities are present.
- A state must take affirmative steps to put the Olmstead holding into action.
- State and federal court cases and decisions interpreting Olmstead in the first year after its issuance indicate that:
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- Olmstead does not require that states add Medicaid coverage for services and benefits that are necessary for community care but that the state does not already provide.
- However, arbitrary expenditure caps on covered home and community services that, when surpassed, result in institutionalization or re-institutionalization, would violate the ADA. Thus, a state plan that fails to adequately fund covered services (e.g., a waiting list) or that sets an upper limit of, for example, 90 percent of the average per capita cost of institutional care on Medicaid expenditures for community services, violates Olmstead. The presumption is in favor of community care. Thus, it is the state, not the individual that bears the burden of proof. A state must be able to show that additional services would amount to a fundamental alteration and may not require an individual to prove that community care is reasonable.
- The decision may lead to the imposition of outer limits on the number of days a state has to put together an appropriate community care program for an individual whom the state's own experts find to be inappropriately institutionalized and who desires community care.
- The individuals protected by the Olmstead ruling include not only persons who are in institutions and who could be appropriately cared for the in the community but also those persons who reside in the community and who risk institutionalization unless they receive appropriate care.
- The decision requires states to ensure that nursing home diversion programs properly avert institutionalization for potential residents through the provision of appropriate community care. Thus, while the state need not institute a nursing home diversion program, if it does so it must fully fund the program it offers.
- The state can deny the aid only at the point at which the obligation to fund appropriate community services requires a fundamental alteration of a state's program.
- The January 2000 policy guidance from the Department of Health and Human Services, signed jointly by the Health Care Financing Administration and the Office for Civil Rights, sets forth a broad framework for planning, and vests considerable discretion in states to define what constitutes a reasonable response to the need to develop community services.
- Many states are now actively engaged in post-Olmstead planning.
Top of PageIn considering the needs of older persons with physical and mental disabilities and the role of Medicaid as part of a state's planning process, it is important to consider each of the elements outlined in the HHS guidance. It is also important to assess the state's Medicaid program design in the case of older beneficiaries in particular. For instance:
- Does the state's Medicaid home and community waiver program reach older individuals as well as children and young adults?
- Does the state Medicaid plan (or the home and community care waiver program) provide coverage for the types and range of services identified by experts as important to the successful community integration of older persons with disabilities?
- How aggressively does the state screen nursing homes and other institutional residents to determine the appropriateness of their placements?
- In the case of older persons with disabilities who are without access to satisfactory informal caregiver arrangements, what resources are available in addition to their own income (e.g., SSI or Social Security benefits) to help meet the cost of community housing, particularly assisted living arrangements?
- Are older consumers represented in the planning process? Does the process include persons who are knowledgeable about the design of community-based programs and services for older persons with disabilities?
Olmstead gives both the federal government and consumers the power to more closely examine state efforts to develop community services for persons with disabilities for whom an institutional placement would be inappropriate.
The ruling is as important to older persons with disabilities as it is to younger individuals, and active involvement in state planning processes is key. Advocates for older persons with disabilities should consult their state protection and advocacy agencies to learn about the process in their states.
Footnote
1 Rosenbaum, Sara, J.D., Olmstead v L.C.: Implications for Older Persons with Mental and Physical Disabilities (November 2000), AARP Public Policy Institute Issue Paper #21.
Written by Sara Rosenbaum, Hirsh Professor, Health Law and
Policy, The George Washington University, School of Public Health
and Health Services
Mary Jo Gibson, Project Manager, AARP Public Policy
Institute
November 2000
©2000 AARP
May be copied only for noncommercial purposes and with
attribution; permission required for all other purposes.
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Pub ID: INB30