Some light summer fare.
ISM
-----Original Message-----
From: [log in to unmask] [mailto:[log in to unmask]]
On Behalf Of Stephanie Thomas
Sent: Thursday, July 01, 1999 3:32 PM
To: micasa-list
Subject: FW: Summary of decision
Below is a Summary of the Olmstead decision, and some ideas of what we can
do to make it work for us in our states. You will see, about 2/3rds of the
way down this piece "what should we do in reaction to the Olmstead
decision?" and following that a list of things we can do. The decision is a
victory, but while it is not a slam dunk or a silver bullet, it does give us
tools to use to promote real choice...
-----Original Message-----
Summary of Supreme Court’s decision in Olmstead v. L.C. -
Some Preliminary Thoughts
1. The 20th century began with eugenics taking a primary place in US and
world history (it could be called the “Century of Eugenics”). But, it will
end with a “qualified” victory for the integration of people with
disabilities in all communities. The Olmstead decision should be read in
the context of the 1920's
and 30's when states not only sterilized and legally terminated the lives of
people with disabilities, but their creation of institutions for people with
disabilities became widespread; and as the century grew so did these
institutions from nursing homes, to institutions for people with psychiatric
or developmental
disabilities. The Olmstead decision has shifted the debate. Yesterday the
question was should people with disabilities live in the community? Today it
is how are we to provide services for people with disabilities in the
community!?!
A civil right? No the nine in robes didn't quite say that. We still have
work to do. They said unjustified institutionalization is discrimination.
What did they say?
A. Under the ADA, “unjustified placement or retention of persons in
institutions, severely limiting their exposure to the outside community,
constitutes a form of discrimination." Unjustified institutionalization is
discrimination.
B. “Unjustified institutional isolation ... reflects two evident
judgments. First, institutional placement of persons who can handle and
benefit from community settings perpetuates unwarranted assumptions that
persons so isolated are incapable or unworthy of participating in community
life... Second, confinement in an institution severely diminishes the
everyday life activities of individuals, including family relations, social
contracts, work options, economic independence, educational advancement, and
cultural enrichment.” Unjustified institutionalization stigmatizes, and
severely limits a persons life!
2. And, for the first time, the Supreme Court held states are required to
follow the ADA’s “integration mandate” in long term community services and
supports.
3. States must “avoid [this] unjustified isolation,” unless the “reasonable
modifications” would “fundamentally alter the nature of the service,
program, or activity.”
4. While the “fundamental alter” regulation existed before the Olmstead
decision, there was one major change that the Supreme Court made.
A) Before Olmstead, we compared the costs of the named
plaintiffs in an institution to these individuals' cost in the community.
Because it was less expensive for the named plaintiffs (L.C. & E.W.) in the
community, the two Circuit Courts had held there was no “fundamental
alter[ation]” in the program.
B) After the Supreme Court the comparison is broadened. Now in
order to use the “reasonable modification” defense, a state must
affirmatively prove its programs, services, activities, as reflected in its
allocations of resources, are
“even handed” and ensure a “full range” of services. Specifically:
1. States must prove they administer services “with an even hand.”
OUR RESPONSE: A State by State analysis of the institutional
expenditures versus the community expenditures will show the institutional
bias of existing services. Services are not “even hand[ed].” Nationally,
the split is 80% of funds to institutions, 20% to community services.
2. States must prove they “maintain a range of
facilities.”
OUR RESPONSE: We think this means a full range of services,
one that offers real choice (though the Court did not elaborate). In most
states, the “range” is so lop-sided that there is no real choice to live in
the community.
States are not currently providing a range services that offer real choice.
3. “To maintain a range of facilities and to
administer services with an even hand” and to 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].”
OUR RESPONSE: What state has any plan to move people out of
nursing homes? What state has a “comprehensive” and “effectively working”
plan to move people out of other institutions, for that matter? Remember,
the state’s plan must positively show how, who, when, etc. people will be
moved out of institutions.
States must:
a) use organizations of people with disabilities to identify all who want
to leave institutions.
b) create the plan with, and approved by,
people with disabilities.
c) develop home and community based services to meet the needs of
those leaving the nursing homes and other institutions.
4. 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” can “not [be] controlled by the State’s endeavors to keep
institutions fully populated.”
OUR RESPONSE: Reasonable pace should be determined by
organizations of people with disabilities. One test of “reasonableness”
should be how long your Governor would want to stay, unnecessarily and
unjustified, in an institution or
nursing home.
*************
In summary what should we do in reaction to the Olmstead decision?
First we should demand that our state:
1. Create a committee made up of a majority of people with disabilities,
old and young, to implement the decision.
2. Identify all people in nursing homes and other institutions who want to
live in the community. Contract with people with disabilities to go into
nursing homes and other institutions to give residents their options. The
“letter” approach used in the
past won’t cut it.
3. Develop a plan, using the committee in item 1, that moves people with
disabilities out of nursing homes and other institutions The plan must
include timetables and assign responsibility to individuals.
4. Develop and fund the community services to get people out of nursing
homes and other institutions.
Demand that we, the disability community:
1. Work for the introduction and passage of MiCASSA, Medicaid Community
Attendant Services and Supports Act.
2. Serve as committee members and contract to effectively do the visits.
3. Ensure community services are funded and provided effectively.
4. DON'T MOURN ..........ORGANIZE!!!!
An individual’s civil right. Not yet! A states responsibility. Yes.
Let’s hold their feet to the fire and FREE OUR PEOPLE!!!!
For information: ADAPT 512/442-0252 or 303/733-9324
NATIONAL ADAPT MAILING LIST - Adapt MiCASA List of Adapt Organizers.
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