10 Plus Years After the Olmstead Ruling: Progress, Problems and Opportunities.
This report was supported by a grant from The SCAN Foundation. The SCAN
Foundation’s mission is to advance the development of a sustainable continuum
of quality care for seniors.
The authors offer thanks to The SCAN Foundation’s Lisa Shugarman, Director of
Policy, and Keyla Whitenhill, Policy Analyst; their comments and suggestions were
invaluable in developing this report. Ann Marie Marciarille assisted with research and
drafting, and law students Aaron Kupchella and Whitney Chelgren provided valuable
research assistance. We also wish to thank our colleagues at the National Senior
Citizens Law Center, in particular Scott Parkin and Anna Rich, for their willingness
to help in a variety of ways.
This report is also available online at www.nsclc.org (click on “Issues” tab and go to
the Long Term Care section). Additional copies of the printed report are available
by calling 202-289-6976.
Inside and outside government, there is now a widely held view that home and community-based services (HCBS) can better maintain the independence and dignity of persons needing long-term services and supports (LTSS). Consistent with this understanding, statistics show a significant percentage increase in older persons able to receive LTSS outside of nursing homes. Nonetheless, unnecessary institutionalization is still a routine problem for too many older adults and people with disabilities, especially those with lower incomes.
Olmstead Ruling and Effects In 1999, the United States Supreme Court ruled in Olmstead v. L.C. that unnecessary institutionalization of people with disabilities is a type of discrimination prohibited by the Americans with Disabilities Act (ADA). A state government that operates its programs in a way that unnecessarily forces persons with disabilities to move into nursing homes or other institutions violates the ADA. Under the ADA, a state government is not required to make a “fundamental alteration” to a program to accommodate the needs of a person with a disability but it can be required to make a “reasonable modification.”
Nationally, the Olmstead decision has had two principal effects. First, the case confirmed that a state could be sued if its programs lead to unnecessary institutionalization. Second, the Olmstead decision and its reasoning have become accepted in the community, particularly throughout the network of persons providing aging services. Policymakers, stakeholders, and many consumers are familiar with Olmstead and understand the core of its ruling—that people with disabilities have a right not to be relegated to nursing homes, psychiatric hospitals, and like institutions.