In June 1999, the Supreme Court issued its opinion in the seminal case of L.C & E.W vs. Olmstead. The plaintiffs in that case were two women with dual diagnoses of mental illness and mental retardation, who had a history of treatment in institutional settings. Although both women had been assessed and recommended for relocation to community-based treatment, they both remained hospitalized. They sued in federal court, challenging their continued confinement in violation of Title II of the Americans with Disabilities Act (ADA).
The court held that unjustified institutional isolation is discrimination based on disability. Title II of the ADA provides that qualified individuals with a disability may not be subjected to discrimination. Under the ADA, qualified individuals are persons who, with or without reasonable modifications to rules, policies, or practices, meet the essential eligibility requirements to receive services or participate in programs or activities provided by a public agency or organization. The court held that the state may generally rely on the reasonable assessments made by its own professionals in determining whether an individuals meets the essential eligibility requirements to live in a community-based setting.
The court noted that the state's responsibility to provide community-based treatment is not boundless. Public entities are required to make reasonable modifications to avoid discrimination on the basis of disability, but are not required to take measures that would fundamentally alter the nature of their programs. The court further held that to maintain a range of facilities and administer services with an even hand, the state must have more leeway than allowed by the lower courts. The reasonable modification standards is met if the state demonstrates it has comprehensive, effectively working plans to place qualified individuals with mental disabilities in less restrictive settings and persons placed on waiting lists are accommodated at a reasonable pace not controlled by the state's interest in keeping its facilities fully populated. The court concluded that states are required to provide community-based treatment for persons with mental disabilities when the treatment professionals determine that such placement is appropriate, the affected people do not oppose such treatment and the placement can be reasonably accommodated, taking into account the resources available to the state and the needs of others with mental disabilities.
Olmstead Plans and Implementation
The Olmstead Executive Commission was established in April 2000 within the former Cabinet for Health Services. At the same time, the Cabinet joined with the University of Kentucky as coapplicants for a Robert Wood Johnson planning grant and a draft plan was submitted to the Cabinet with recommendations in September 2001.
In May 2002, the secretary of the then-Cabinet for Health Services issued an administrative order creating the Kentucky Olmstead State Consumer Advisory Council to work for implementation of a state plan to meet the broad mandate of the Olmstead decision.
The council consists of many of the same members of the original Olmstead planning group, in addition to 35 representatives of persons with specific disabilities, geographic regions and cultural groups. The then-Cabinet for Health Services released its final Olmstead Compliance Plan December 11, 2002.
The Kentucky Olmstead Plan Committee began working on a plan in November 2000. A series of public forums was conducted throughout the state where housing, access to services and transportation were identified as key issues. Recommendations developed by the committee were sent to the cabinet in fall 2001.
Issued in December 2002, the Cabinet's Compliance Plan outlines state programs that currently support community-based efforts, makes recommendations, sets goals and strategies for each initiative and lists challenges with Olmstead compliance. The plan is modified and updated as necessary.
Some of the plan's goals and strategies include:
- The Cabinet will continue to provide an ongoing mechanism for consumer involvement and input for compliance with the Olmstead decision. A strategy for ensuring this goal is to continue the Cabinet's Olmstead Advisory Council.
- System capacity to support initial and ongoing self-determination initiatives should be assessed.
- Consumers and families should have meaningful information about choices that they can understand.
- Consumers and families should have a formal means to appeal administrative decisions.
- The process for determining an individual's eligibility and need for services will be based on objective criteria focusing on functional ability and recommendations by the treatment team. As a result, current assessment tools will be evaluated, and new tools will be developed.
- Plans will be developed to transition appropriate individuals from institutions into the community.
- Systematic ways to prevent unnecessary institutionalization should be developed. A strategy for ensuring this goal is to review the current process for referral to long-term care institutions.
- Quality community supports will be available for individuals with disabilities. Performance measures will be developed and modified.
- Individuals who provide direct services in the community will be properly trained. A strategy for ensuring this goal is to create uniform training curricula for staff.
- Appropriate housing options should be available. Strategies included maximizing the use of federal housing programs and promoting the use of universal designs in new construction.
- The current transportation delivery system for medical and non-medical service, employment and recreational activities should be enhanced by developing grant opportunities.
- The employment rate for people with disabilities should be increased through the creation of a seamless system of employment supports.
- Performance measures will be systematically and regularly reassessed for program effectiveness and Olmstead compliance. A strategy is to develop outcomes measures for assessing Olmstead compliance.
Some of the challenges include:
- Building consensus regarding wait list criteria; and
- Increasing the provider base to meet the expanding need for community services.
The Olmstead State Plan Committee will continue its planning and implementation activities focusing on three main areas: consumer oversight by quality and consumer satisfaction, informed choice and access to housing options and workforce development.
Throughout the state, Olmstead coordinators are in place at the state-operated psychiatric hospitals and intermediate care facilities for the mentally retarded (ICF/MR). The coordinators are responsible for community placement activities at each facility and work collaboratively with the facility, the client, potential supports for community living (SCL) providers, family members, guardianship, and representatives of protection and advocacy.