Olmstead and the ADA: A Guide to the Decision

by Michael Kirkman, J.D.,
Legal Director, Ohio Legal Rights Service

The information provided in any OLRS publication is not a substitute for legal advice. You should consult with a lawyer concerning your rights in a specific case. Contact your local bar association or visit the Ohio State Bar Association Web site to find a lawyer in your area.

Contents

• Introduction
• Background
• The Decision
• Reaction
• Table of Breakout of Votes by Written Opinion
• Endnotes

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Introduction

The Supreme Court of the United States has decided one of its most important cases for people with disabilities. In the case of Olmstead v. L.C., the Court has ruled that a state violates Title II of the ADA if it segregates a person with a disability in an institution when the person could be served in the community. The court also upheld the legality of the Justice Department's ADA "integration" regulation, which requires states to serve eligible people in the community. A plurality opinion (4 of 9 justices) suggested how states might justify their choices in providing residential services and defend a case, but still requires under most circumstances that the states must take steps to provide community placements for people in institutions if the person is eligible for the services and chooses to move.

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Background

For years people with disabilities and their legal advocates have gone to court to secure a right to community placement under the U.S. Constitution. After the U. S. Supreme Court guaranteed a right to treatment in state facilities in the case of Youngberg v. Romeo, advocates sought to extend this ruling to community care through cases such as Thomas S. and Hissom, where, generally speaking, the courts required that the state create community placements for people in institutions who were eligible for such services. These efforts were, however, sporadic and not always successful.

It was against this background that Congress passed the Americans with Disabilities Act of 1990 (ADA). Title II of the ADA requires that states provide services to people with disabilities in a non-discriminatory way. The statute requires that no qualified person, "by reason of ... disability," be excluded from or denied services by the state. Title 42 U.S.C. § 12132. The ADA required the Justice Department to issue regulations explaining and implementing this section of the law. One of these regulations, 28 C.F.R. § 35.130(d), requires the state to "administer programs in the most integrated setting appropriate to the needs" of the person with a disability.

Advocates like Ohio Legal Rights Service (OLRS) and Steven Gold, of Pennsylvania, as well as the United States Department of Justice, have brought suits under this part of the ADA on behalf of institutionalized people who wished to be served in the community. Cases like Helen L. in Pennsylvania and Williams v. Wassertrom in Maryland ⁽¹⁾ have been given national attention as the courts have ordered the state to serve qualified people outside of the institution.

Olmstead was a similar case brought in Georgia on behalf of two people with disabilities, L.C. and E.W. L.C. and E.W., who are developmentally disabled and who were diagnosed as mentally ill, were admitted to a state psychiatric hospital. After brief periods of treatment, their physicians and other professionals involved in their care agreed that they were qualified for placement in the community. Georgia, like Ohio, had not allocated enough resources to community placements, instead developing and funding large institutions and nursing facilities while waiting lists for home like, community services grew. Thus, even though L.C. and E.W. wanted to live in a community placement, and the state's professionals agreed that they were qualified and appropriate for a community placement, they were forced to continue to reside in an institution.

L.C. and E.W. filed suit in federal court in Atlanta to enforce their rights under the ADA. The judge ordered Georgia officials to place them in the community. The state appealed, and the federal appeals court agreed that the ADA required that L.C. and E.W. be served in the community. The Supreme Court agreed to review the state's appeal of that decision.⁽²⁾

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The Decision

While the Supreme Court's decision is broken into many parts (see Table 1), five justices (a majority) agreed on two important aspects of the case. The first is that Congress intended to end unjustified segregation of people with disabilities when it passed the ADA. Therefore, the term "discrimination" as used in the ADA was broad enough to prohibit states from keeping a person with a disability in a segregated setting when the person could be served in the community. In support of this point, the justices rejected arguments raised by the state that discrimination had to appear as disparate treatment between people with and people without disabilities. The justices ruled that Congress had not intended to limit its definition of discrimination in this fashion.⁽³⁾ The second point was that the integration regulation issued by the Department of Justice was a legitimate interpretation of the ADA, and therefore the regulation could be enforced in court.

A third part of the opinion was agreed to by only four of the nine justices, known as a "plurality" opinion. Plurality opinions, while not binding, can provide guidance to lower courts that are deciding similar cases. This part of the opinion gives a suggestion as to how the four justices would vote if another case like this one makes its way to the Court.

The plurality opinion addresses the "reasonable modification/fundamental alteration" defense that a state may raise to defend an ADA integration claim. The opinion said that a state could defend a suit under the ADA by showing that "immediate relief for the [person with a disability] would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities." The plurality went on to suggest that a state could meet this requirement by proving that it had a "comprehensive, effective working plan" to place people in the community, and "a waiting list that moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated." The opinion suggests that trial judges must consider the cost of two tier systems, that is the cost of maintaining institutions while developing community placements. The language in the plurality opinion (and in Justice Kennedy's separate opinion) reflects the concerns voiced by these Justices at oral argument of the case: that the ADA not be seen as a reason for the states to dump people against their will into the street, or as a mandate to close institutions.

Under Olmstead, however, it is now settled law that the ADA prohibits segregation of a person with a disability in an institution if the person can demonstrate that:

• she or he is a person with a disability (as defined by the ADA);
• he or she wants to move;⁽⁴⁾
• the state's professionals agree that she or he is qualified to move;⁽⁵⁾
• creation of a community placement is a reasonable modification of the state's programs.

The state must then place the person with an integrated placement unless it can demonstrate that to do so would be a fundamental alteration of its residential program. The plurality decision suggested that a state could defend its failure to place the person if it could demonstrate that:

• it has a comprehensive and effective plan to place people in the community;
• people are moved off waiting lists at a reasonable rate.

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Reaction

Reaction to the decision was swift and, not surprisingly given the splintered nature of the opinions, diverse. The parties to the case both declared victory. Advocacy groups for people with disabilities, their parents, state governments, and others all embraced different parts of the decision. Those who support closing institutions endorsed the Court's endorsement of the ADA and the Justice Department regulation. Those who wish to preserve congregate living settings endorsed section III-B of the opinion (the plurality) and Justice Kennedy's concurrence.

Interestingly, it seems that this case will not just be implemented through the courts. Key personnel of the U.S. Justice Department and the Office of Civil Rights, U.S. Department of Health and Human Services, have indicated that they will begin to review state Medicaid plans for compliance with the decision. And the lawyer who brought the Helen L. case and other cases for people in nursing homes has put state legislators on notice that as many as 80 percent of the people in nursing homes would seek community placement if asked.

Olmstead has been called the Brown v. Board of Education for people with disabilities. The decision secured a right to community placement that had previously been the subject of vigorous debate in the federal courts. The fundamental alteration defense will continue to be litigated in the lower courts, with the plurality opinion providing guidance to them. There is, however, little doubt that the case calls for a significant change in the way many states deliver services to people with disabilities. In some states these changes were already under way; the effect of the decision will be to speed them up. States will need to develop an "Olmstead" plan, and review how they administer waiting lists. The Olmstead decision will generate vigorous policy discussion for the next few years.

Table of Breakout of Votes by Written Opinion

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Endnotes

1. In Ohio, OLRS' Martin v. Taft case is on hold until the court decides several motions, including motions for summary judgment filed by both parties. [Return to text]

2. The Court took the case 'on Certiorari,' which means that at least four of the Justices voted that the case was a good one for the Court to review. [Return to text]

3. A sixth Justice, Justice Kennedy, agreed that the ADA prohibited unjustified segregation of people with disabilities. He thought, however, that the ADA would only apply if the person with the disability could show that they were being treated differently from a person without a disability. For example, it would be discriminatory if a person with a disability could only get medical services in an institution, while a person without a disability went to their doctor's office. This analysis is not helpful, however, since the types of services delivered by institutions are often specific to the disability rather than generic services. People without disabilities, for example, don't usually seek out personal assistants, but these services are critical to allow people with disabilities to live in their own homes. Justice Kennedy's analysis is too fact based to be of use in many of these types of cases. [Return to text]

4. The court did not speak to the issue of decisions by surrogates, such as guardians. It is likely that the decision of a person's guardian would be honored by the state and the courts in this regard, but that a decision of the guardian to restrict movement of an otherwise qualified person would be subject to review under both state law and the integration regulation of the ADA. [Return to text]

5. In Olmstead there was no factual dispute about the appropriateness of community living. The case does not speak to the harder question, what to do if there is disagreement between professionals, or if the decision of the professionals reflects improper factors (cost, availability), is reached for administrative reasons, or is just badly done. While Olmstead creates a presumption in favor of placement if the state's professionals agree, it does not prohibit movement if there is no agreement, or even if there is disagreement. It suggests that the state's judgment in recommending continued placement may be challenged if it appears that the state is trying to keep institutions open. As in any other case where there is a factual dispute, courts will be called upon to evaluate the manner in which the conclusion was reached, and to resolve conflicts based on the weight and credibility of the evidence. [Return to text]

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