My daughter is in a nursing home and I am trying to get services for her in our community. Someone said I should ask about the Olmstead Decision because it might help us. What is it and why is it important?
The Olmstead decision is a case decided by the United States Supreme Court entitled "Olmstead v. L.C." 527 U.S. 581 in 1999, which sets forth the rights of people with mental disabilities, including those with traumatic brain injury to receive government services in a community setting as opposed to an institution.
The case is very important because it establishes that the placement or keeping of people with mental disabilities in an institution when the same or similar services can be provided in a community setting is discriminatory and a violation of the Americans with Disabilities Act.
The Supreme Court held that when it has been established by professionals that 1) services to the individual can be appropriately provided within the community, 2) the transfer to a community setting is not opposed by the individual, and 3) appropriate accommodations can be made for the individual within the community, then the failure to provide the services within the community setting is discriminatory and unlawful.
The Court's decision is based upon the premise that a public entity shall administer programs and activities in the most integrated setting appropriate to the needs of the individual with a disability. Reasonable accommodations must be made for the individual so as to avoid discrimination based upon a disability.
The Supreme Court recognized that the unjustified isolation of people with a disability in an institution when services can be provided outside of the institution is a form of discrimination. The housing of individuals in an institution perpetuates unwarranted assumptions that people housed in a facility are incapable or unworthy of participating in community life. The Court also recognized that confinement within an institution severely diminishes the everyday activities of the individual including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.
Therefore, people with a traumatic brain injury who are presently receiving services within an institution can request that these same or similar services be provided for them within the community, if this can be accomplished in a reasonable fashion, which provides safety to the individual and is not cost prohibitive to the government.
Each State must set up a comprehensive and effective plan for placing qualified people in a less restrictive setting, if they so desire to be placed. If the State has a waiting list for these services, the waiting list must move at a reasonable pace.
To comply with this decision, many states have set up Medicaid-waiver programs so that people with a brain injury who are eligible for Medicaid assistance — which would only be provided if they were a patient in a nursing home or other long-term care facility — can now receive these same services while living within the community.
It is important for people receiving traumatic brain injury services within an institution, such as a long-term care facility, nursing home, sub-acute rehabilitation facility, or similar place, to contact their State Health Department or similar agency and request that these services be provided to them at home, if they so desire.
Michael V. Kaplen, Esq. is a partner in the New York law firm De Caro & Kaplen, LLP. Mr. Kaplen is a professorial lecturer in law at The George Washington University Law School, where he teaches a course in traumatic brain injury law. Mr. Kaplan serves on the board of directors for the New York State Academy of Trial Lawyers.