Using The Olmstead Decision as an Advocacy Tool for Your Clients

Like most NAELA members, I frequently hear from my clients, "Do whatever it takes to keep me out of a Nursing Home." Further, I often am requested to draft an estate plan, and particularly a special needs trust to protect a client's family member with a disability, that will prevent the beneficiary from being "placed" into a group home or institution against his or her will. Responding to this increasing demand for access to quality long-term care services in the least restrictive setting is a complex legal challenge. We must be able to respond creatively.

This is not a new issue for our clients. As identified in the excellent NAELA White Paper on Reforming the Delivery, Accessibility and Financing of Long-Term Care in the United States:

The current system in our country for addressing long-term care is a non-system, a hodgepodge of services that fails to meet the needs of the elderly and disabled in the variety of long-term care settings. It is economically inefficient and it fails to assure the quality of services which are provided.

The White Paper asserts that, "The time has come for the citizens and government of the United States to address the issues of the delivery, accessibility and financing of long-term care in our Country." Unfortunately, little progress has been made towards the reforms urged by our Organization. So how do we respond to the requests and needs of our clients in the meantime? Be creative. This article will provide an overview of the Olmstead vs. L. C. Supreme Court, 527 US 581 (1999) decision, and outline how it may be creatively used as an advocacy tool on behalf of our clients.

The Decision

This landmark 1999 Supreme Court decision, built upon the promises made

in the Americans with Disabilities Act almost a decade earlier, held that "unjustified isolation" of individuals with disabilities "is properly regarded as discrimination based on disability, as it perpetuates negative stereotypes and severely restricts and infringes upon the everyday life activities of individuals with disabilities."1 Consequently, states must place individuals in community settings rather than in institutions when:

The states' treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the state and the needs of others with mental disabilities.2

The plaintiffs in the case, L. C. and E. W., are young women with developmental disabilities. When their suit was filed against the state of Georgia, they were receiving treatment in a state psychiatric hospital. Their treating physicians agreed with the ladies that a community-based setting for their services would better meet their needs than the hospital setting. The ladies sued for violation of Title II of the ADA, covering covers, " public services furnished by governmental entities." 3

The decision did not create an absolute right to be placed into the community, irrespective of costs or other factors. The court clearly recognized that a state's obligation to provide care and treatment for individuals with disabilities is limited by its available resources and its obligation to, "maintain a range of facilities and to administer services with an even hand."4 The justices also recognized that states will need to address difficult policy issues, such as the increase overall expenses that result from the need to continue operating partially-full institutions, while at the same time funding community services at an appropriate level.5

The ADA only requires "reasonable accommodations". Therefore, the court determined that states did not need to make any modifications that would fundamentally alter...