Thanks to Susan Stefan, J.D.
The Good News: In Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003), the Ninth Circuit reversed a district court's summary judgment on the Olmstead claims of a class of medically needy Medicaid recipients who were limited to receiving nursing home care because Washington State had not applied for a community based services waiver for that population.
The district court had held that the exclusion of medically needy people from Washington's community based waiver program was discrimination based on income level rather than disability. In addition, the district court invoked Rodriguez v. City of New York to hold that the ADA does not require states to provide new services that they do not already provide to people with disabilities.
The Ninth Circuit held that plaintiffs had established that they were being discriminated against, since the plaintiff was disabled, preferred to be served in the community, and the State did provide community services of the kind that the plaintiff class requested. The majority distinguished Rodriguez by pointing out that "where the issue is the location of services, not whether services will be provided, Olmstead controls."
In a nice footnote, the court noted that "Washington's law, explicitly providing only nursing-home based long term care services to the medically needy, may be read to facially discriminate against disabled persons..."
The Bad News:
The court remands for consideration of a fundamental alteration argument, which I have not seen before, and which it appears to consider a valid argument. Essentially, the argument boils down to the proposition that if community based service waivers were offered, there might be considerable additional costs attributable to the fact that nursing home care is so odious that it provides a disincentive for people to apply for it. It also appears to accept the argument that if providing community based services to medically needy individuals resulted in cutbacks in services to other Medicaid recipients, that this would make out a valid fundamental alteration defense.
Other Bad News (in my opinion)
This is another Ninth Circuit decision where the majority opinion appears to have been written hastily in comparison with an extensive, detailed, meticulous dissent. Judge Beezer has written a dangerous dissent, arguing that "the comprehensive structure of the Medicaid program" forecloses the application of the ADA. This is a new procedural/substantive argument; citing Traynor v. Turnage, 485 U.S. 535 (1988), Judge Beezer finds that because the Medicaid Act is a "narrow, comprehensive statute," it is not superseded by the later-enacted Americans with Disabilities Act. Since Congress gave the States discretion in the Medicaid Act to not provide community care, by making nursing home services mandatory and community services available only through waiver programs, "the Americans with Disabilities Act should not transform Washington's exercise of congressionally-conferred discretion into discrimination."
The Washington State disability groups should be alerted to this case to try to persuade the State of Washington not to appeal this decision to the U.S. Supreme Court. The dissent's reasoning has the potential to undermine the application of the ADA to the Medicaid program in many cases currently being litigated at the district court level.
Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003)
Williams v. Wasserman, 164 F. Supp. 2d 591 (D. Md. 2001)
Williams v. Wasserman was brought in federal court in 1994 to challenge the inappropriate institutionalization of two groups of patients: those with traumatic brain injuries and those who were developmentally disabled, although not mentally retarded. The core of the plaintiffs' claim was that both the etiology and treatment of the behavior problems manifested by these clients were crucially different from those of the psychiatric patient population at these institutions. Plaintiffs charged that defendants failed to treat these clients in a manner appropriate to their condition, resulting in violations of their constitutional rights to safety, freedom from undue restraint, and minimally adequate treatment. In addition, the Department failed in its obligations to provide this group of clients with services in the community, leaving them stranded in inappropriate institutions long after their treatment teams recommended community placements.
The Williams case involved two sets of claims: substantive Due Process claims and claims for integration under the ADA. After denying the State's motion for summary judgment, a trial was held in 1996, post-trial briefs were filed in 1997, and the court remained silent for four years. On Sept. 27, 2001, the judge released an 84-page opinion finding that the defendants prevailed on all claims, granting defendants' motion to exclude the testimony of Nancy Ray, and closing the case.
Procedurally, this case was not tried as a class action, but on behalf of a "representative" group of twelve plaintiffs. In 1995, the plaintiffs withdrew their motion for class certification after defendants agreed to apply any individual relief to all other persons similarly situated. This decision may have had significant consequences for the analysis in the case.
I. Due Process Claims
A. Reconfiguration of Professional Judgment Standard
Although the court cites Youngberg's professional judgment standard as the appropriate basis for determining whether plaintiffs'constitutional rights to safety, freedom from bodily restraint, and minimally adequate training were violated, the court restructures the Youngberg standard in unprecedented ways. Within two pages, the court uses language that resonates first of a deliberate indifference test and then of a negligence standard.
For example, while the court explicitly rejects defendants' invitation to apply the standard announced by the Supreme Court in County of Sacramento v. Lewis, 523 U.S. 833 (1998) (constitutional rights of person killed during high speed car chase violated only if police acted in an arbitrary manner or in a way that shocks the conscience), the judge's standard appears to resemble City of Sacramento: "the focus of the court's inquiry should be on whether the plaintiffs have proven that the defendants' conduct was sufficiently arbitrary or egregious to deprive them of due process," p. 39, note 21. This sounds almost like a deliberate indifference standard.
Only two pages later, however, the court states that its job is to "determine whether the treating professionals employed reasonable judgment in caring for these patients, whether any of the treatment recommendations so deviated from ordinary care as to violate the patients' due process rights, and whether any failure to follow treatment recommendations resulted in a constitutional violation." p. 41. This sounds like a negligence standard.
In fact, the court cites to virtually no case law in support of its opinion. Given the length of time it took for the court to issue its opinion, and the wealth of case law interpeting Youngberg, the opinion is remarkable for its concentration on facts and slim discussion of applicable case law. It refers to the Thomas S. line of cases occasionally, but for the most part, the court concentrates entirely on the testimony of plaintiffs' and defendants' experts.
The decision specifically examines claims in the area of medical care, safety, restraint, treatment, and community treatment. Most of these are discussed below.
Although many of the plaintiffs were severely and repeatedly injured at the state facilities, the court found that "to prove a constitutional violation, the plaintiffs must show that the State abdicated its responsibility to `take thought and make reasonable provision for their welfare," p. 47 (citing City of Sacramento v. Lewis). Although many of the plaintiffs were assaulted frequently, and one suffered "lacerations requiring sutures, a fractured finger, scratches, bruises and abrasions, a bloodied nose, a shoulder fracture, and a right hip fracture," the court cited approvingly defendants' expert testimony that "he saw nothing unusual about the number of injuries suffered by the plaintiffs." p. 48.
The court's legal approach to chemical and physical restraints does not appear to focus on whether the restraint is a substantial departure from professional judgment. For example, with no case law or clinical citation, the court appears to determine that drugs cannot be chemical restraints if they are taken orally rather than intravenously (citing defendant's expert as saying "generally, chemical restraints are given intravenously and against the patient's will. In this case, most of the patients were given Ativan or a smilar medication orally on an as-needed basis when they became overly agitated. Even assuming that excessive use of oral medications could amount to chemical restraint, the court finds that the use of PRN medication reflected in the plaintiffs'records does not rise to the level of a constitutional violation" p. 53).
The court finds that tying a client continuously to a geri-chair by a posey vest did not violate the constitution because the defendants'experts stated that the alternatives were "keeping him in 6-point restraints continuously or surrounding him by staff on four sides at all times." p.51. The posey vest is preferable because it allows him freedom to move his arms and legs, and therefore "struck an appropriate balance between freedom and safety." The court does not analyze whether the use of the vest and chair is a departure from professional judgment. It is important to remember that the Supreme Court has already struck the balance between freedom and safety through the professional judgment standard.
In other portions of this section, the court appears to allude obliquely to the professional judgment standard: "The plaintiffs have not proven that the State did not appropriately rely on the recommendations of the hospital doctors in secluding or restraining the patients. Nor has it shown that the recommendations substantially deviated from any accepted standards."
Again, the Youngberg standard appears to be reconfigured. Plaintiffs charged that staff were not trained to deal with TBI/NMRDD clients, and the judge decided that experience was the equivalent of training. The court cited defendants' expert testimony that "state hospital staff and environments have had the most experience in taking care of these particular patients. So I think the level of training is adequate."This appears to equate longevity with expertise. The expert and the court confirm this conclusion, with the expert going on immediately to state "In many cases it's better than anybody else has simply because they have had the experience with these very difficult patients." The court again quotes the expert as saying that patients like one of the plaintiffs "have been around for a while...and essentially they have been in the state hospitals...And these are the staff members who have been taking care of these patients. They do a good job at it. They have the most experience with it." The court follows the defendants'experts in dismissing these same staff members' statements that they do not have sufficient training or expertise to deal with this patient population by saying, rather incredibly, that there are no experts in treating this population of patients. The court states, "although the staff members apparently thought that there was some expertise out there that they didn't have that would enable them to provide better care' no such expertise existed." (p. 61)
d. Community Placement
Although the court reiterates the Thomas S. holding that "the state may not confine patients to mental institutions who do not belong there simply because it is financially or politically expedient to do so" the court also holds that "it is sufficient if a state acts reasonably to implement community placement, without arbitrary or undue delay in light of legitimate budget constraints and the competing demands of other disabled individuals." pp. 62-63. This, of course, sounds as though the court is engrafting a version of the ADA integration mandate on to the Due Process analysis. But as a practical matter, it is difficult to imagine how future plaintiffs will distinguish between individuals who are trapped in institutional settings because of "financial convenience" (unconstitutional) as opposed to "legitimate budget constraints and the demands of other disabled citizens"(constitutional). Given the court's analysis of the ADA standard, proving the former condition appears to present formidable obstacles.
In addition, defendants' experts testified, rather suprisingly, that there was no standard of care established in the published literature for people with traumatic brain injury or developmental disability unrelated to mental retardation. Rather, the defendants' experts testified, and the court credited, that, like Potter Stewart, they knew adequate care when they saw it. ("Each judged the sufficiency of care administered by the hospitals in accordance with his own clinical experience, familiarity with treatment facilities, and the standards published for`other psychiatric patients who may have these kinds of behavioral problems," p. 40. (Of course, the crux of the plaintiffs' case was that the etiology and treatment of behavior problems associated with traumatic brain injury and developmental disabilities was entirely different from the etiology and treatment of behavior problems manifested by psychiatric patients).
The court makes clear it knows that it is rejecting the process by which qualified experts "describe a set of uniform treatment standards and then determine whether the care administered at the state institutions met those criteria" and adopting instead a "flexible"standard based on looking at each individual and the treatment he or she received.
Given the courts' acceptance of defendants' individualized approach, and given the unequivocal way in which the court resolves the case in favor of defendants, it is surprising that the court goes out of its way to exclude the testimony of plaintiffs' expert Nancy Ray because she isn't a medical doctor and only summarized the contents of patients'files and her conversations with patients.
This approach to evidence is possible because the fact section of the opinion is entirely focused on the twelve representative plaintiffs. Had this been pursued as a class action, it is hard to believe that the court could have rejected testimony about "a set of uniform treatment standards" in favor of an individual-by-individual approach.
II. Americans with Disabilities Act
The opinion recites the Olmstead requirements in a pretty standard way, leaving little room to argue with its understanding of the Olmstead legal standard, but its application of the standard is problematic.
Although Maryland's argument was clearly that the costs involved in placing the TBI/NMRDD population constituted a fundamental alteration, the reader never gets a glimmer of how much that cost would be, annually or over time, how it compares with the Department's budget annually and over time, or how specifically it would impact on the placement of other disabled people in the community. The time issue is significant. This opinion represents the first time a district court has answered one of the questions raised by the Olmstead fundamental alteration defense: if costs are asserted as a defense, what is the time frame in which costs are to be assessed? The court states that "measured against the three to five year time frame, and considering the need to maintain a minimum number of hospital beds and also to fund placements for other persons in need of community treatment, the State's progress in placing members of the TBI/NRDD population into the community has been acceptable." However, there is only one sentence in which the judge tells us what that progress has been: "In 1994[(1)], DHMD initiated a special TBI project to develop and fund community placements...Many but not all of the TBI/NRDD population eventually were successfully placed in the community." (emphasis mine) pp.78-79. Thus, although the costs are assessed in a three to five year framework, the state is given a significantly longer period of time over which to assess its success in placing clients. And although the court explicitly notes that "It appears that the state's focus on de-institutionalization and community treatment also has been affected by pressure of litigation," p. 77, the fact that the placements of TBI/NRDD patients all took place during the pendency of litigation that has now been permanently and definitively terminated by the court is not taken into consideration.
In addition, the way in which the court decides that defendants have shown that they have made sufficient progress in placing TBI/NMRDD patients focuses neither on the twelve representative plaintiffs nor even on TBI/NMRDD patients as a whole. Although the court acknowledges that substantial amounts of money can be saved in the long run by treating people in the community, it points to the necessity of maintaining hospitals, which grow more expensive as more people are placed in the community.
As to the State's pace of community placement, the court looks to Maryland's success in placing patients who are not TBI/NMRDD, which seems to miss the plaintiffs' basic contention that they are the ones who have been left behind in the overall community movement in Maryland. This reaches its apex of incongruity when the court dismisses the argument that Maryland could have applied for Medicaid Home and Community Based Services waivers for the TBI/NMRDD population (as almost a third of other states have done) and chose not to do so with the observation that "Maryland officials have made significant efforts to take advantage of other Medicaid waivers." I have argued elsewhere that defendants should be precluded from asserting a defense based on cost if they have not applied for Medicaid waiver funds to defray the costs of community integration, since the majority in Olmstead referred to the defense "in view of the resources available to the state."
The most coherent way to package the court's fundamental alteration analysis (although this is never explicitly stated in the decision) is that the relevant group for "reasonable pace of discharge" analysis is all clients for whom the Department is responsible, not simply the plaintiff group, especially if the plaintiff group is so small that placing them in the community cannot by itself generate cost savings for the Department. The number of institutionalized TBI/NMRDD clients--sixty--and the court notes that "reaching the large volume of change necessary for replacing a substantial portion of the fixed costs of institutionalization depends on the state's overall progress." Because Maryland has made reasonable progress with other institutionalized disabled people, the court seems to say, it has met the ADA standard.
Of course, this is extraordinarily problematic when the plaintiffs'claim is that Maryland's progress has been made while leaving them behind--segregated precisely on the basis of their specific disabilities. I don't think that the theory of this case was that the plaintiffs were discriminated against compared to other clients with developmental and psychiatric disabilities, and I don't know how the fundamental alteration defense would work in the face of such a claim.
It appears that using representative plaintiffs rather than a class action may have permitted a focus on individuals to the exclusion of information and expert testimony about the group of clients as a whole, to the detriment of the case. It also may have permitted the court's unusual departures from traditions of evidence and expert testimony, such as citing extensively to defendants' experts' conclusions based on their experience rather than any standards in the field; indeed, the court accepted the assertion from experts that there was no expertise available on treating this population. In most instances, depending on the particular facts of the case, Olmstead cases should probably be brought as class actions.
Second, we should recognize that general Olmstead claims should be made on behalf of as large and generalized a class as possible, encompassing as many of the defendants' clients as possible to avoid invoking "other persons in need of community treatment." The specific case here, where the claim is that a specific group of disabled people are being discriminated against compared to other disabled people, raises the question of whether the ADA supports claims that one group of disabled people is being discriminated against as compared to another group, a claim that has survived in cases such as Martin v. Voinovich, and appears to be endorsed in dicta by the Supreme Court in Olmstead when it cited cases supporting discrimination claims by one minority even though defendant treated other minorities equitably.
Impact of the Decision
It is hard to gauge what the impact of this case will be. The intense focus on the representative patients and expert testimony makes this a heavily fact-specific case, which may have little impact on other cases in the constitutional area. However, the court's detailed analysis of novel issues in the ADA arena is likely to attract attention. The degree to which it is influential depends on whether other courts are just looking for answers and precedent, or whether they focus on whether the analysis is coherent and sound. --
[1.] This was the year that Williams v. Wasserman was filed.
For an interesting decision affirming the continuing viability of actions for injucntive relief in the Eighth Circuit under the ADA, see Salcido v. Woodbury County, 66 F. Supp. 2d 1035 (N.D. Iowa, 1999) (The case also raises interesting issues arising out of financing mechanisms of the kind generally support by advocates as keeping people out of hospitals.)
Salcido v. Woodbury County, 66 F. Supp. 2d 1035 (N.D. Iowa, 1999)
Olmstead v. L.C., 527 U.S. 581 (1999)
This decision is many things: a mixed bag, a great victory, and a tremendous opportunity. As framed by Justice Ruth Bader Ginsberg, the question before the Supreme Court was "Whether the proscription of discrimination may require placement of persons with mental disabilities in community settings rather than institutions." The Court answered this question "Yes", but, as Justice Ginsberg made clear, it is a "qualified yes."
Nevertheless, in Chief Justice Rehnquist's Supreme Court, dominated by Republicans, a Court that on the same day rejected both the EEOC's and the Department of Justice's interpretations of their own ADA regulations, the answer "Yes" reflects the enormous achievement of the entire community of people with disabilities, including the attorneys who worked endless hours to get to that "Yes." When Homeward Bound v. Hissom Mem'l Ctr., 963 F.2d 1352 (10th Cir. 1992), was brought a little over a decade ago, even sympathetic advocates were skeptical about the concept that unnecessary institutionalization was discriminatory segregation. Twelve years after Hissom*, the United States Supreme Court holds that "unjustified placement or retention of persons in institutions... constitutes a form of discrimination based on disability..." Many, many people contributed to the change in mind-set represented by that "Yes." What follows is an analysis of the case itself. The fact that the "yes" represents five out of nine Justices, and that two of those five were appointed by the current administration, strongly suggests that continuing victories in the Supreme Court may depend on who gets elected in November 2000. Suggestions for political follow-up of this decision will appear in a separate article.
Essentially, the Court sided with L.C. and E.W. on the question of whether inappropriate and unwanted institutionalization constituted discrimination under the ADA, then resolved its own hesitations and doubts about the enormity of this proclamation by handing defendants fairly substantial cover in its interpretation of affirmative defenses available in such cases. The Court left many unanswered questions about how its vision of the ADA will be translated in actual terms in court and in the states. These questions are likely to be answered by what happens in L.C. on remand, as well as what happens in similar cases currently progressing through the federal court system: Williams v. Wasserman, 164 F. Supp. 2d 591, 531 (D. Md. 1996), in Maryland, Kathleen S. v. Dept. of Public Welfare in Pennsylvania (see entry below), and Brown v. Chiles [AKA "Cramer v. Bush"] and Johnson v. Bradley in Florida, to name a few. (For a fairly comprehensive list of litigation raising ADA segregation claims, see the Appendix to the Amicus Brief filed by seven states -- down from 22 after ADAPT got through with them.) These cases, as well as the political arena reflected in the current Presidential and other electoral races, represent the tremendous opportunity created by Olmstead v. L.C..
Summary of Decision
A. The Good News: Unnecessary Institutionalization is Segregation Banned by the ADA
First, the good news. The Court clearly holds that "unjustified placement or retention of persons in institutions, severely limiting their exposure to the outside community, constitutes a form of discrimination based on disability prohibited by Title II." (28). In deciding what constitutes discrimination, the Court (as it did in Bragdon v. Abbott but certainly did not do in Sutton v. United Air Lines, 527 U.S. 471 (1999), gave deference to the Department of Justice's interpretation of its own regulations. Paradoxically, the Court also cautioned that it was not determining the validity of those regulations (22). A finding of discrimination requires neither animus against people with disabilities nor the presence of a comparison class of people without disabilities who were treated better is required. This is a tremendously important holding, underscored by the outrage of the three dissenters, who wrote at length (but futilely) arguing that there must be a comparison class of non-disabled people who are preferentially treated. However, not all decisions which disfavor people with disabilities are discriminatory. The Court hastens to point out that a State may reasonably decide to expend more funds on programs for people with one kind of disability than another without exposing themselves to liability under the ADA.
Notwithstanding its finding that "Congress had a more comprehensive view of the concept of discrimination" than one which would require a comparison class, the Court suggests -- and Justice Kennedy makes clear his preference for -- the possibility that such a class in fact exists: non-mentally disabled people do not have to be locked up away from the community to receive needed medical care, while people with mental disabilities do. The practical problems of proving such a case clearly worry Justice Kennedy, and the majority underscores that these comparisons are not necessary to establish discrimination.
Why is unnecessary institutionalization discrimination? The Court gives two answers to this. 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 and cultural enrichment." Second, "confinement in an institution severely diminishes the every day life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment." (35). Interestingly, these two indicia of institutionalization as discrimination do not vary with the quality of institutional care -- inappropriate institutionalization is discrimination regardless of whether you're in the snakepit or the newest and fanciest facility. In addition, the emphasis placed on access to normal community activities raises questions about whether some "community" placements segregate as much as institutional placements.
Although the Court notes that the Department of Justice's interpretation of inappropriate institutionalization as segregation dates back to Section 504 days, the majority makes few references to Section 504 in figuring out what constitutes discrimination under the ADA, and is entirely silent with regard to its own Section 504 jurisprudence. Instead, it makes a slighting reference to Section 504 as "a single sentence attached to vocational rehabilitation legislation"which "has yielded divergent court interpretations." (34) The ADA is seen as having "stepped up" earlier anti-discrimination measures. The inference that ADA jurisprudence--at least in this area--will not look back to Section 504 case law is underscored again by examination of the dissent, which refers repeatedly to Southeastern Community College v. Davis, 442 U.S. 397 (1979), Alexander v. Choate, 469 U.S. 287 (1985), and Traynor v. Turnage, 485 U.S. 535 (1988).
B. The Unsurprising Qualifier to the Good News: While Individuals May be Inappropriately Institutionalized, Professionals Get to Decide Who is "Appropriate" for Community Placement and Institutions Themselves are Appropriate Forms of Treatment
In order to benefit from the holding in L.C., one must be "inappropriately" placed in an institution. In order to determine whether an individual is "inappropriately" placed in an institution, the "State generally may rely on the reasonable assessments of its own professionals in determining whether an individual meets the essential eligibility requirements for habilitation in a community-based program."(*38)
This is not terribly surprising. It is the position taken by the Department of Justice, and to decide otherwise risks turning every placement decision into a federal matter, not something this Court in particular -- with its amply articulated concerns about intruding on state prerogatives--was likely to endorse.
Nor is it as bad as it could be. It is quite clear that the professional's assessment must be based solely on the individual's condition, and not on the availability of community placements -- lack of placements is part of the State's affirmative defense, not part of the decision of whether an individual is "otherwise qualified" to be placed in the community.
What will be more painful to advocates reading the decision, although also not surprising given the Court's concerns at oral arguments about people ending up on the streets with no care, is the outpouring of assurance that "the ADA is not reasonably read to impel States to phase out institutions, placing patients in need of close care at risk." The Court goes so far as to state that for some people, "no placement outside the institution may ever be appropriate." (Shades of Youngberg v. Romeo, 457 U.S. 307 (1982), where the Court found that Romeo would never be able to survive outside of an institutional setting -- he was placed in the community several years later, even before Pennhurst closed).
C. The Bad News: State Defenses Expanded
The two worst features of this decision are 1) the conclusion -- also made by the Eleventh Circuit -- that community placement is a "reasonable accommodation," and the accompanying importation of the defense of "undue hardship" into segregation jurisprudence. Although the exposition of the "undue hardship" comes in Section III-B, and is not technically the opinion of the Court, Justice Kennedy's concurring opinion gives little hope to those "undue hardship" or, as even more loosely renamed by the Court, "undue burden" is a defense that applies only to requests for reasonable accommodation. Not being segregated should not be seen as a "reasonable accommodation" any more than making restaurants and schools admit blacks would be called "affirmative action." Title II of the ADA permits discrimination only if prohibiting it would "fundamentally alter" a program. Although other defenses are available under Titles I and III, no other defense was provided by Congress in the language of the statute or by the Department of Justice in its regulations.
In its strong concern that State programs be permitted to "maintain a range of facilities and to administer services with an even hand," the Court has essentially imported a new defense into Title II from Section 504, adopting the more flexible "undue burden" or "undue hardship"defense in place of the "fundamental alteration" defense. While the fundamental alteration defense had been interpreted (probably incorrectly) to include only measurements of cost, the Court underscores that undue burden also involves "the overall size of the recipient's program with respect to number of employees, number and type of facilities, and size of budget; (2) the type of the recipient's operation, including the composition and structure of the recipient's workforce; and (3) the nature and cost of the accommodation requested. If these factors seem a bit bizarre in the institutional context, it is because they were written for the employment context. All of these factors are extremely fuzzy, and they leave a lot of play for the federal judge to exercise his or her own discretion.
Going even farther, the Court spells out to defendants what they can show to successfully combat a segregation case: "If, for example, the State were to demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated, the reasonable modification standard would be met"(*44-45). The Court clearly believes that this is necessary to discourage people from bringing litigation simply to jump to the top of the waiting list. Depending on how the lower courts interpret the requirement of a "comprehensive, effectively working plan" and a "reasonable pace" of placements, this requirement could be either sensible or fatal to any kind of progress in placement.
Not surprisingly, this decision creates as many questions as it answers. For example, the Court completely failed to address the fact that L.C. and E.W. fell through the cracks of two service systems because they had dual diagnoses of developmental disability and mental illness. Whose waiting lists have to move at a reasonable pace? What is the universe of clients whose needs must be "evenly served?" These questions and others will be answered in days to come.
A heartfelt thank you to Steven Caley, Sue Jamieson, Michael Gottesman, Ira Burnim, Jonathan Ezekiel, and all the others who worked so hard for so long on this case.
See the Bazelon Center's analysis of the case on its web site as well as our analysis of the Eleventh Circuit's decision below.
See additional links relating to Olmstead v.LC, including various briefs (including NARPA's) and information about the work of activists' efforts to support the community integration. Click here to go the NARPA Rights Tenet.
Olmstead v. L.C, 527 U.S. 581 (1999).
May 14, 1999
Rodriguez v. DeBuono, 44 F. Supp. 2d 601 (S.D.N.Y. 1999), is a very good decision. Plaintiffs challenged certain aspects of New York's procedures to determine the number of hours of personal care services that eligible Medicaid recipients could receive. These procedures ultimately resulted in fewer personal care hours being allocated to people with certain kinds of mental disabilities. The disparity between the services received by people with mental disabilities and others was challenged as violating the Medicaid Act, Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act. Defendants objected that Section 504 and the ADA did not prohibit discrimination as between people with different kinds of disabilities, only discrimination as between disabled and non-disabled people. The court rejected this argument, and rejected defendants'proposed analogy to Alexander v. Choate, 469 U.S. 287 (1985), finding that "Choate challenged a general limitation which applied equally to handicapped and nonhandicapped recipients. Here, plaintiffs challenge a restriction placed only on individuals with mental disabilities who are denied the services offered to individuals with physical disabilities.
The court characterized defendants' reading of Section 504 and the ADA -- that "anti-discrimination statutes offer no protection for the mentally disabled when they are discriminated against by a public entity which does not provide any services to healthy individuals" -- as extreme, and not the result intended by Congress.
Furthermore, the court held that the defense of additional cost was permitted only in the most limited circumstances where the extra cost would fundamentally alter the program, and held that institutionalization (not "unnecessary institutionalization" but institutionalization) was an irreparable harm sufficient to justify injunctive relief.
Last updated January 2005, by Tom Behrendt. (Links updated November 2019.)