Comment #2 on CMS proposed regs (CMS-2296-P): Don't use Olmstead as an excuse

As is often the case, the Americans with Disabilities Act and the Supreme Court's Olmstead decision are being used incorrectly to justify restrictions on needed services and programs for people with developmental disabilities.

ISSUE #2: Rationale for changes are not supported by law

Under background information, the CMS seeks "to ensure that Medicaid is providing needed strategies for States in their efforts to meet their obligations under the Americans with Disabilities Act (ADA) and Supreme Court's decision in Olmstead v. L.C., 527 U.S. 581 (1999). In the Olmstead decision, the Court affirmed a State's obligations to serve individuals in the most integrated setting appropriate to their needs..."

The CMS proposed regulations go beyond this mandate and exclude settings that "have the qualities of an institutional setting".

The Supreme Court's Olmstead decision supports choice, despite the fact that it has been widely misinterpreted as a mandate to close all institutions: “We emphasize that nothing in the ADA or its implementing regulations condones 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.” 119 S. Ct. at 2187.

Furthermore, the Olmstead decision does not comment specifically on or mandate the closure of community-based programs or residential placements of any size nor does it designate these programs as institutional in nature and therefore discriminatory. Olmstead, and by extension the Americans with Disabilities Act, gives no support to eliminating or limiting access to settings that are "institution like", housing complexes that are "disability-specific" and "expressly designed around an individual's diagnosis”, if these services are appropriate to the needs of the individual.

ADA regulations on integration say, "A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." [28 C.F.R. §35.130(d)]. 

The phrase, "appropriate to the needs of qualified individuals with disabilities" suggests that appropriateness is determined on an individual basis by the individual and the people who know his or her needs, and not by regulators or advocates who have no knowledge of the person and his or her needs and preferences.