Olmstead at Five: Assessing the Impact

Prepared by Sara Rosenbaum, J.D. Joel Teitelbaum, J.D., LL.M.
Department of Health Policy School of Public Health and Health Services The George Washington University Medical Center June 2004

Introduction

This paper examines the impact of Olmstead v. L.C. 1 five years after the United States Supreme Court's 1999 landmark decision. Olmstead established two legal principles fundamental to health policy for persons with disabilities.

The first is that the medically unjustifiable institutionalization of persons with disabilities who desire to live in the community violates Title II of the Americans with Disabilities Act (ADA), which applies to publicly funded services.

The second is that states have a legal obligation to affirmatively remedy such discriminatory practices through reasonable modifications to public programs and services.

As with so many watershed civil rights cases, Olmstead is both profound and ambiguous, raising many questions even as it established broad safeguards for persons with disabilities.

In its use of "broad brushstroke" standards, Olmstead has left many of the most difficult implementation questions in a health context to the lower courts, as well as to federal and state policymakers.

The task of interpretation in the wake of a legal landmark is a difficult one, and change often can be difficult to measure, especially in quantifiable terms.

Yet five years after Olmstead, the landscape has indeed shifted in important if subtle ways. Even though progress in adapting health programs to the needs of persons with disabilities may be slow, it is nonetheless evident, not only in the courts but also -- and as importantly -- in emerging federal and state legislative investments in community integration.

This analysis brings together new research with a synthesis of research undertaken over the past five years, the purpose of which was to help policy makers and program administrators understand the meaning of the ADA for health programs in Olmstead's aftermath.

Part 1 of this paper presents an overview of the ADA and its community integration structure. It also summarizes the results of research into issues which have been identified by researchers, persons with disabilities, and disability advocates as essential to community integration.

Part 2 presents a brief overview of the Olmstead decision and the legal framework on which it rested.

Part 3 describes Olmstead's legacy, both in the courts and in the administration of public programs, with special consideration to Medicaid's role for persons with disabilities and the evolving nature of the program.

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Conclusion

Like many seminal civil rights decisions, Olmstead has different meanings.

The decision established a broad legal standard for measuring the adequacy of publicly funded health program design for persons with disabilities. At the same time, it is evident that its lofty goals, which parallel those of the ADA itself, can be reached only through a national commitment to reforms that extend far beyond the power of courts to devise.

United States courts are among the most powerful in the world in terms of their ability to intervene in broad questions of policy and to frame remedies. But in a democratic society, the center of power for transforming evolving social mores into policy and law is (most appropriately) found in the legislative process. Here the power of Olmstead to help generate change is equally great, although not so direct.

This review underscores the role of courts and legislative and administrative policy making in advancing the type of fundamental shift in social policy that is the hallmark of important civil rights litigation. The ADA represented a dramatic strengthening of prior U.S. policy toward persons with disabilities.

Olmstead represents the power of courts to ensure that all public programs -- health, education, transportation, and so forth -- are administered in a manner that is consistent not only with the terms of the ADA but its most profound goals. Some of the most important changes can be linked directly to Olmstead, in particular state planning efforts and new investment opportunities enacted by Congress over the past five years.

Other changes, such as the sea changes in Medicaid structure, which have occurred since 1990, both preceded Olmstead and help explain why the Supreme Court dismissed any notion that Medicaid was inherently institutional in nature and thus offered no relevant tools for community integration.

Without question, a long road lies ahead. Programs that make housing, transportation, education, jobs and other activities of daily living possible for persons with disabilities remain underdeveloped and seriously underfunded.

Medicaid’s evolution is still a work in progress, with much reform needed to make the program more accessible to children and adults with disabilities. Particularly important are two types of changes. The first would be aimed at further modernization of the very stringent test of disability that guides Medicaid (i.e., an inability to perform substantial gainful work) in favor of one that focuses on persons who are qualified persons under the ADA (i.e., who can live and work in communities with reasonable modifications in services and supports). The 1999 amendments which permit retention of Medicaid in the face of improvement are a start, but much more is needed.

The second change is one that would further incentivize investments in community services. This could be done by making home and community services a state Medicaid option for which no waivers are needed. It also could be promoted by establishing a preferred rate of federal financial contribution for community-based programs, especially those that integrate health, education, social, and employment-based programs and that contain strong links to housing, transportation, and family support services.

The ideal of community integration lies at the heart of the ADA. This ideal is given expression in the power of the ADA to directly and indirectly spur the strengthening and modification of public programs in order to promote community integration of persons with disabilities. Whether this change comes through courts or through legislation will depend on unique circumstances that historically have guided the interplay of the branches of government in advancing social welfare reform. The important challenge that lies ahead is to ensure that progress continues, and that the path to reforming public programs such as Medicaid and other essential community supports mirrors the ADA in both letter and spirit.

Source: Kaiser Commission

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