A Quick Look at the Olmstead Decision for Kansas Policymakers

Policy Implications for Kansas

• • Non-compliance with the Olmstead decision could cost states millions of dollars in federal civil rights settlements, the loss of federal funding, or lawsuits by individuals.
  • The decision has major implications for the design and funding of state Medicaid programs.
  • To be compliant with the Olmstead decision, Kansas policymakers must ensure that their programs for people with disabil­ities treat all members of the population equally while maxi­mizing community integration and avoiding unnecessary institutionalization.

Introduction

More than 400 complaints — at least one from Kansas — and a growing number of lawsuits have been filed against states regarding community integration of persons with disabilities, highlighting the importance for state policymakers of the U.S. Supreme Court’s 1999 Olmstead v. L.C. decision.

In the Olmstead decision, the U.S. Supreme Court expanded the reach of the Americans with Disabilities Act (ADA) by finding that unnecessary institutionalization is a form of discrimination because it requires persons with disabili­ties to receive care in institutions while persons without disabilities can receive care in the community. The Court ruled that the ADA prohibits states from unnecessarily institutionalizing persons with disabilities and failing to serve them in the most integrated setting appropriate to their needs, if the provision of community services represents a reasonable accommodation.

Unfortunately, there is no clear picture of what compliance looks like. Judging from previous integration decisions, such as Brown v. Topeka Board of Education, clarity about the practical implications is likely to be years away. States still must attempt to comply or potentially face serious consequences for failure, both to state financing and to the people who need services.

This Issue Brief provides Kansas policymakers with information about the Olmstead decision and discusses compliance issues with the goal of helping them to understand the issues and design programs that comply with the decision.

Depending on the current status of a state’s integration activity and its plan for serving people in the least restrictive setting, additional efforts may be needed to further expand com­munity-based services to comply with the decision.

In analyzing the design of their long-term care programs post-Olmstead, states are addressing a wide variety of issues.

The variation in state programs and the unique environments in which they operate make comparisons across states or assessments difficult. This difficulty is exacerbated by the lack of clarity about what the decision really means.

The Centers for Medicare and Medicaid Services and OCR have issued guidelines to states for developing plans that can be used to demonstrate compliance. The principles included in this guidance, shown in the box on the facing page, serve as a foun­dation for OCR oversight and enforcement activities.

In February 2001, President Bush announced the New Freedom Initiative, a comprehensive plan to help people with disabilities integrate into commu­nities. As a part of this initiative, HHS has initiated the “Systems Change Grants for Community Living” program. The Kansas Department of Social and Rehabilitation Services received a $1.4 million grant in 2002 to help design and implement improvements in community-based systems. A $725,000 grant to improve consumer-focused personal assistance services was awarded to the University of Kansas Center for Research.

Measuring Compliance

The Supreme Court’s decision was not intended to be an open-ended requirement for states to provide community-based services for everyone who requests them. States are required to make reasonable modifications to accommodate community placements but are not required to make fundamental alterations to the nature of their services or programs. The Court suggested that states can show compliance by demonstrating they have a comprehensive, effectively working plan for placing qualified persons with disabilities in less restrictive settings and a waiting list for community services that moves at a reasonable pace.

The Court recognized that states must maintain an array of services and facilities for a range of disabilities and that they have an obligation to administer services equitably across the entire population of people with disabilities. Unfortunately, the practical implication of key terms used by the Court to define the states’ obligations under the ADA is not clear. Subsequent court decisions will determine the full impact of the decision on state programs.

A March 2000 report from the Kaiser Commission on Medicaid and the Uninsured suggests four ways to measure compliance with the court decision, although the report proposed no bench­marks for achieving compliance.

• • The proportion of people in institu­tions for whom an assessment of the appropriateness of community place­ment has not been completed.
  • The length of a waiting list, compared to the need and the length of the wait.
  • The number of people in the commu­nity who are determined to be receiv­ing services appropriate to their needs.
  • The proportion of people who need institutional services who are able to receive them there.

Reasonable Accommodation vs. Fundamental Alteration

The Supreme Court was clear that the needs of people with disabilities who are able to be placed in the com­munity must be balanced against the needs of people who require institution­al services. A state may be able to defend against an Olmstead suit by showing that moving individuals or group of individuals into a community setting would harmfully reduce services to other persons with disabilities who need institutional care.

Reviews of litigation suggest a few emerging principles courts will use to determine whether a requested program change alters the basic character or an essential feature of a program, a funda­mental alteration, or modifies a more peripheral aspect, a reasonable accom­modation. These principles are:

• • The potential state cost of a program change requested by an individual or group will not, by itself, determine whether the change will be required. Courts will generally look at all avail­able resources, the needs of other per­sons with disabilities and the state’s history in funding community services in making a judgement.
  • Courts are likely to require that all fed­erally approved slots in HCBS Medicaid waivers are funded but will not require the state to add slots to accommodate a request for services.
  • Courts are not likely to order changes to eligibility criteria if they are deter­mined to be an integral part of the character of a program. If exceptions have been made in the past, then courts are more likely to order modifications.
  • Whether states are required to add new services to programs or expand pro­grams that would facilitate community integration is not uniformly decided at this point. However, decisions imply that states must reasonably fund the services they currently provide.

• • Inadequate state funding is not generally a defense for delaying com­munity services. However, if adding additional funding would cause a fundamental alteration of the entire waiver program or violate the cost neutrality of the Medicaid waiver, the defense may be successful.
  • Substantial waiting lists may be allowed if the state is funding all of the slots authorized in their federal Medicaid waiver.
  • States need to show they are making reasonable modifications toward achieving integration.
  • A state’s plan to move people into the most integrated setting may include time limits on the length of wait that is reasonable.