Ten-Plus Years After: The Olmstead Ruling Sees Progress but Faces Hurdles

Article excerpt

The National Senior Citizens Law Center (NSCLC), with support from The Scan Foundation, recently released 10Plus Years After the Olmstead Ruling: Progress, Problems, and Opportunities. The report documents what has happened since the landmark ruling in terms of progress and problems related to its impact. Olmstead is widely credited for an increased emphasis on the use of home and community-based services (HCBS) in place of institutionalization of older adults and people with disabilities. Some parts of the health reform law build on that progress, but more needs to be done to fulfill its promise.

In 1999, the United States Supreme Court ruled in Olmstead v. LC. that unnecessary institutionalization of people with disabilities is a type of discrimination prohibited by the Americans with Disabilities Act (ADA). A state government violates the ADA by operating its programs in a way that unnecessarily forces persons with disabilities to move into nursing homes or other institutions. Under the ADA, a state government can be required to make a "reasonable modification" to a program to accommodate the needs of " a person with a disability, but it is not required to make a "fundamental alteration" to the program.

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.

Statistics show a significant percentage increase in older persons who are able to receive long-term services and supports (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.

Motivated in part by Olmstead, both Congress and federal agencies have increased access to HCBS for persons in need of LTSS.

Federal court decisions have also played a role in enunciating states' responsibilities under Olmstead. The full NSCLC report goes into more detail about the progress made and responsibilities clarified (see www.nsclc.org).

CHALLENGES TO HCBS USE

Despite progress made, the availability of LTSS for older persons remains slant- " ed unduly toward institutionalization.

Indeed, limitations in the current system are largely attributable to Medicaid's bias (intended or not) toward institutions over HCBS. While Medicaid is the single greatest source of coverage for HCBS, Medicaid's statutory framework generally makes coverage for institutional care easier for people to attain.

The primary reason for this bias is the differences in Medicaid between nursing home coverage and HCBS waiver coverage. Nursing home care is an entitlement under federal Medicaid law: it must be made available to any person who satisfies the relevant financial and clinical eligibility standards. In contrast, in most cases, HCBS is provided through a Medicaid waiver. Waivers have limited enrollment, so a person may be denied coverage despite meeting financial and clinical eligibility standards. …