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.