Olmstead Attorney Sue Jamieson & Plaintiffs Lois Curtis & Elaine Wilson

The continuum of care legislation has provoked our opponents, Equip for Equality, Access Living, the ARC, and others.  Once again, these groups seek to use the Supreme Court’s decision in Olmstead to justify their attacks on Misericordia.  

To properly defend Misericordia, it is important to understand the Olmstead decision, its context, and what it really means.  In the end, you will see thatOlmstead is Misericordia’s friend because Olmstead protects choice.  Therefore, it in no way supports our opponents’ “one size fits all” ideology.  

The story starts with the Americans with Disabilities Act (the “ADA”).  This landmark statute provides that “no individual shall be discriminated against on the basis of disability.”  The purpose of the statute is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”  What does discrimination mean?  Discrimination simply means treating people differently.  So, for example, if I want to buy a home and the owner says he won’t sell to me because I am too old, that I should go live in a retirement community where I belong, the owner is discriminating against me because of my age.  But, if instead, I simply decide that I want to live in a retirement community, no one has discriminated against me.  I have made my own decision, my own choice.  And my choice is respected.  Similarly, if an individual with a disability wants to live in a small home in the community and is told he can’t because he is disabled, he is being discriminated against.  But, if that individual decides he wishes to live in a campus setting instead of in a small home in the community, no one is discriminating against him.  He is making his own choice and that choice should be respected.

In fact, the ADA recognizes that individuals with disabilities must be permitted to make their own choices.  Section 12201(d) of the statute says:  “Nothing in this chapter shall be construed to require an individual with a disability to accept an accommodation, aid, service, opportunity, or benefit which such individual chooses not to accept.

The ADA required the Attorney General to issue regulations to implement the statute.  One of those regulations provides that services for individuals with disabilities shall be provided “in the most integrated setting appropriate to the needs” of the individual with a disability.  This, of course, is the language that our opponents latch on to.  But, they conveniently ignore other key regulations which are intended to preserve the individual’s right to choose.  So, for example, the federal regulations state that nothing in the Act or regulations “require[s] an individual with a disability to accept an accommodation . . . which such individual chooses not to accept.”  28 CFR § 35.130(e)(1).  The regulations also provide that “persons with disabilities must be provided the option of declining to accept a particular accommodation.”  28 CFR pt. 35, App. A, p. 450. 

It is in this statutory context that the Supreme Court decided Olmstead.  The case did not involve any constitutional questions.Olmstead  simply applied the ADA and its regulations to the facts that were presented in that case.  And the facts are quite instructive.   The case was brought by two women, who among other conditions, were diagnosed with schizophrenia and a personality disorder.  Both were voluntarily admitted to the psychiatric unit of a hospital in Atlanta.  After each received about a year of treatment in the hospital, their treating psychiatrist determined that their needs could be appropriately met in a community-based program.  Despite this finding by their treating physician, and the desire of both women to be discharged from the hospital, the State of Georgia failed to place the women in a community-based program.  The women sued claiming that their rights under the ADA had been violated. 

The lower courts agreed with the women’s claims and Georgia appealed to the Supreme Court.  The Supreme Court held for the women and established a very important three-part test to determine whether a community-based setting is “in order.”  The Court stated that the placement of an individual with a disability in a community setting “is in order” when:  (1) “the State’s treatment professionals have determined that community placement is appropriate,” (2) “the transfer from institutional care to a less restrictive setting is not opposed by the affected individual,” and (3) “the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.”  The Court went on to explain that there is no “federal requirement that community-based treatment be imposed on patients who do not desire it.”  Id. at 602.  Thus, Olmsteadsimply follows the dictates of the ADA and the implementing regulations that an individual’s choice must be honored.  Our opponents ignore this central tenet of Olmstead and the ADA.  Instead, they assert that Olmstead requires that all individuals with disabilities be served in the community.  Olmstead holds no such thing.  It couldn’t, because to do so would be to run afoul of the ADA’s requirement that “Nothing in this chapter shall be construed to require an individual with a disability to accept an accommodation, aid, service, opportunity, or benefit which such individual chooses not to accept.”  Remember the purpose of the ADA is to prevent discrimination.  The ADA is not intended to deprive individuals of choice.   When an individual chooses a campus setting, no one is discriminating against him or her and that choice does not violate the ADA or Olmstead.

The Supreme Court in Olmstead also made this important observation:  “nothing in the ADA or its implementing regulations condones the termination of institutional settings for persons unable to handle or benefit from community settings.  . . . Nor is there any federal requirement that community-based treatment be imposed on patients who do not desire it.”  In Olmstead the two women who brought suit wanted a community-based setting.  We agree that anyone who wants a community -based setting should be given that opportunity.  But, we also believe that anyone who wishes to receive services in an ICF/DD or a campus setting should be provided that opportunity, and the ADA and Olmstead support our position.

These same issues arise in the employment context.  The ADA requires that choice be honored in that context as well.

I hope you found the above useful.  Please contact me at scott.mendel@klgates if you have any questions or comments.