EDITOR’S NOTE: This article was written Twenty-Five years ago before the Landmark Olmstead decision on June 22, 1999. It is a good description of what the case was about and we hope that you will enjoy it and relive the importance of this decision for people with disabilities.
By: Tim Wheat
On April 21, the United States Supreme Court heard oral arguments in Olmstead v. L.C. No. 98-536. The case involves two cognitively disabled residents of a state hospital who petitioned Georgia to allow them to receive services in the community instead of being confined to an institution. The 11th U.S. Circuit Court of Appeals ruled in their favor last year and today they live in their own homes, in the community. Georgia's Commissioner of the Department of Human Resources Tommy Olmstead appealed the Circuit Court's decision and Tennessee Attorney General Paul Summers has signed on to an amicus brief with six other U.S. states supporting Olmstead's appeal to the U.S. Supreme Court.
Two Georgia citizens, Lois Curtis and Elaine Wilson, sued under Title II of the 1990 Americans with Disabilities Act (ADA) which requires that services offered by a public entity be delivered in "the most integrated setting." Georgia argues that forcing citizens to live in institutions does not constitute discrimination because non-disabled people do not receive such services, no "discrimination" in service delivery can take place. The ADA gives no protection to individuals with disabilities, Georgia contends, who receive services designed only for people with disabilities.
The Congressional findings in the ADA itself counter the rhetoric of the Olmstead petitioners. The federal civil rights law explicitly states: "Segregation of disabled people continues to be a serious and pervasive problem." Congress further made it clear in enacting the ADA that discrimination against individuals with disabilities persists in a wide variety of areas of social life, including "institutionalization." Since non-disabled people are not institutionalized, obviously the ADA is intended to end the isolation and separation from society of people with disabilities.
Those supporting Olmstead have adopted the erroneous reasoning of the Supreme Court in Plessy v. Ferguson. Justice Brown wrote in the majority opinion of Plessy, over a hundred years ago, that legislation cannot eradicate "physical differences," and therefore separate railroad cars were justified for different races. Similarly, petitioners hold that the ADA cannot eliminate physical differences that warrant people with disabilities being separated from typical social and community activities. Georgia asserts that separating people with disabilities is a state's prerogative, consistent with the ADA, and not discrimination.
Separate is not equal. Sen. Lowell Weicker, an original sponsor of the ADA in 1989, explained the aim of the civil rights legislation to Congress: "We have created monoliths of isolated care in institutions. It is that isolation and segregation that has become the basis of discrimination faced by many disabled people today. Separate is not equal. It was not for blacks; it is not for the disabled."
More home and community based services are not any more expensive to Tennessee, but they can represent a huge loss to the subsidized nursing home industry. Currently nursing homes face almost no competition for the $750 million, mostly Medicaid, that flow into this state intended for the long-term care of Tennesseans. Ninety-five percent of the public funds for the long-term care of Tennesseans are paid to facilities.
Tennessee is dead last among U.S. states in provision of alternatives to institutional care. The 1997 Tennessee comptroller's report mentioned the success of Wisconsin, Oregon and Washington. Between 1979 and 1995, Oregon cut long-term care costs by $400 million. Between 1982 and 1992, the report declared, the total number of nursing home beds in those three states dwindled and home and community services increased. Yet Tennessee still prefers to offer, almost exclusively, the most expensive and least desired form of long-term care.
Six Tennesseans with physical disabilities have sued the state Department of Health for failing to provide services in the "most integrated setting appropriate" to their needs. The six plaintiffs in Newberry v. Menke, filed this past December, all face relocation to a nursing home. Altogether Tennessee pays less than 30 thousand dollars a year to provide the services in their homes, but nursing home placement will cost Tennesseans $219,000.00 per year.
Georgia also contends that home and community placement would be a financial burden. In the
January 1999 State Legislative Report, however, the National Conference of State Legislatures said "the annual cost of institutional care for people with disabilities is more than double the average annual cost of providing home and community-based services." The report continues, "States across the country have realized significant savings by offering services that allow people with disabilities to live in the community rather than in nursing homes and other institutions."
Provision of institutional services alone are both unnecessary and more costly. Governor Sundquist has resisted expanding home and community based services to lower Tennessee's long-term care bill because he says he fears creating a "new entitlement," that would bankrupt the state.
The "new entitlement" that Sundquist fears are eligible individuals that are spending their own resources to stay out of a nursing home and might request home and community based services if they were available. Many people that are eligible in Tennessee do not seek any services at all because those services are only obtainable in a nursing home. Throughout the nation, most community-based long-term care is provided by family members and friends (Enid Kassner and Robert W. Bectel, MIDLIFE AND OLDER AMERICANS WITH DISABILITIES: Who Gets Help? 1998). Therefore, Tennessee controls its long-term care costs, in part, by providing citizens with only the worst choice possible.
The tiny new long-term care plan that advocates have struggled for - against the nursing home lobby - will save Tennessee relatively little. By setting aside new funding, the new home and community based programs will not "compete" for the huge resources of the nursing facilities. The money does not "follow the individual," as the original Tennessee Senate Bill 2411 read. As a result, the state's nursing homes are guaranteed their huge government subsidy without interference or competition with the more desired and cost effective community services.
This month a Harris poll showed that nearly nine out of ten Americans supported and approved of the ADA. While most people see the impact of the ADA in accessible parking, buses and buildings, the essential goal of integrating society is less visible. The occupants of institutions are often the most disenfranchised members of our community. The effect of institutionalization is disempowering along with the loss of contact with family, friends and traditional community roles. President George Bush stated the 1990 Americans with Disabilities Act would break down the "shameful wall of exclusion," separating people with disabilities from other Americans.
