HHS to States: How to Comply With Olmstead Decision

This article is provided as a courtesy service of the Great Lakes ADA News Service under a subcontract with the Disability News Services and funded by the U.S. Department of Education, NIDRR #133D60011.  Please review the Conditions for Reproduction of this Article.

(1,200 words, posted February 1, 2000)

by Leye Jeannette Chrzanowski
Copyright ©2000 The Disability News Service, Inc.

On January 14, 2000, the U.S. Department of Health and Human Services (HHS) sent a letter to all state Medicaid directors which conveyed the federal agency's “initial approach to Olmstead and outlines a framework for us to respond to the challenge.” The letter stated HHS's commitment to help states “craft comprehensive, fiscally responsible solutions that comply with the Americans With Disabilities Act of 1990 (ADA).”

The U.S. Supreme Court decision in Olmstead v. L.C., 119 S.Ct. 2176 (1999) held that under the provisions of Title II of the ADA...

• states are required to provide services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities;
• unjustified isolation is disability-based discrimination;
• confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment; and
• states are required to provide community-based services for eligible people and those who want such services if state treatment professionals determine that such placement is appropriate and can be reasonably accommodated using available resources.

The Court, however, cautioned that nothing in the ADA condones termination of institutional settings for people who cannot handle or would not benefit from living in their communities, and that states do not have to provide unlimited community-based services.

To comply with the Olmstead ruling, the HHS letter spelled out key principles that states should follow. States should...

• develop and implement comprehensive, effective working plans to provide services to eligible individuals with disabilities in more integrated, community-based settings;
• provide an opportunity for interested persons, including individuals with disabilities and their representatives, to be integral participants in plan development and follow-up;
• take steps to prevent or correct current and future unjustified institutionalization of individuals with disabilities;
• ensure the availability of community-integrated services;
• afford individuals with disabilities and their families the opportunity to make informed choices regarding how to best meet their needs; and
• take steps to ensure that quality assurance, quality improvement and sound management support implementation of plans.

The letter also noted that HHS's Office of Civil Rights (OCR), which investigates all ADA Title II complaints, will apply these principles when conducting investigations and compliance reviews. HHS also will provide technical assistance during the implementation process.

When developing plans, states should...

• consider conducting thorough, objective and periodic reviews of all people with disabilities, including those in state-run institutions, ICFs/MR, nursing facilities, psychiatric hospitals, and residential service facilities for children, and whether they should be placed in a more integrated setting;
• establish procedures to prevent or correct current and future unjustified institutionalization;
• provide “a reliable sense” of how many individuals with disabilities are currently institutionalized, how many are eligible for community-based services, and whether existing data collection systems need improvement to adequately identify people who should be placed in more integrated settings;
• evaluate how well existing assessment procedures identify individuals in the community who are at risk for placement in an unnecessarily restrictive setting, and how to quickly and effectively respond with preventive measures;
• identify and organize Medicaid and other funding sources to increase the availability of community-based services and improve coordination of existing programs to serve different populations, including older people with disabilities, people with physical, psychiatric, or developmental disabilities, and people with HIV-AIDS in the most integrated and appropriate setting;
• evaluate waiting lists to ensure that people are removed at a reasonable pace; and
• identify, assess and improve existing community-based services to meet the needs of people who may or may not require the assistance of family members or informal caregivers to live in the community.

During a January 18 conference call with HHS, advocates learned that HHS has not established a deadline for nationwide implementation of comprehensive, effective working plans.

The next day, ADAPT's Bob Kafka, who participated in the call, urged advocates to meet with state Medicaid directors to obtain assurances that comprehensive, effective working plans are developed quickly and involve people with disabilities of all ages in design and implementation.

Further complicating the process, the ten regional HCFA offices lack consistency because each represents several states with separate and different requirements. To improve coordination, the national OCR office has assembled a technical assistance team to work with regional offices. HCFA regional offices, however, remain the primary contacts for any changes to state plans and waivers.

During the teleconference, advocates were assured that a state cannot deny community-based services simply because it has not implemented a working plan. In the interim, what are the options for institutionalized people who want community services or people who are in imminent danger of institutionalization?

“I would recommend that you would bring them to our attention now,” responded Thomas Perez, the director of OCR. “We have the capacity to address those issues now without forfeiting our capacity and ability to address the more systemic issues that underlie the complaint.”

Perez also reported that his office is working with HCFA to access data that will give them “some preliminary sense of at least the context of who is there, and what is the potential of people to move into a more integrated setting.”

Still, Kafka urges advocates to identify people of all ages, who want out of, or are in imminent risk of going into a nursing home or any other institution.

If a state denies community-based services to people with disabilities in violation of Title II of the ADA, as soon as possible, those individuals or their representatives should file a complaint which includes the following information...

• the name, address, and telephone number of the complainant;
• the name, address, and telephone number of the person (either the complainant or his or her representative) filing the complaint;
• the name, address and telephone of the person or entity that allegedly discriminated;
• the date of the alleged discrimination;
• the legal basis for the complaint, for example, Title II of the ADA; and
• a description of the alleged complaint.

Perez recommends filing a complaint with the appropriate HHS OCR regional office, and sending a copy of the complaint to him at OCR headquarters in Washington, D.C.

Finally, in instances when a quick response is required, OCR can be reached at (800) 368-1019 (voice); (800) 537-7697 (TTY).

HHS OCR Headquarters  
Thomas E. Perez, Director Office for Civil Rights
U.S. Department of Health and Human Services
200 Independence Avenue, S.W. 
Room 509F HHH Building
Washington, D.C. 20201
(202) 619-0403 (voice number to reach Perez)
(800) 368-1019 (voice)
(800) 537-7697 (TTY)
HHS letter to state Medicaid directors: http://www.hhs.gov/ocr/olms0114.htm (Internet)
HHS sample Olmstead letter to governors: http://www.hhs.gov/ocr/olmstgov00.htm (Internet)

OCR Regional Office
Region V - Chicago (Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin)
Al Sanchez, Acting Regional Manager
U.S. Department of Health and Human Services
Office for Civil Rights
233 N. Michigan Avenue, Suite 240
Chicago, Ill. 60601
(312) 886-2359 (voice)
(312) 886-1807 (fax)
(312) 353-5693 (TTY)

HCFA Regional Office
Region V - Chicago
DHHS/HCFA/DSC
233 N. Michigan Avenue, Suite 600
Chicago, IL 60601
(312) 353-9635 (voice)
(312) 353-3419 or (312) 353-0252 (fax)

This work was performed under a subcontract with the Board of Trustees of the University of Illinois, and funded by the U.S. Department of Education, NIDRR #133D60011.

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