In recognition of the 12th anniversary of the Supreme Court's Olmstead decision, the United States Department of Justice issued a comprehensive technical assistance guide --"Statement on Enforcement of the Integration Mandate" --of the ADA and Olmstead. In the June 22nd guidance, DOJ stated: The "goal of the integration mandate to provide individuals with disabilities opportunities to live their lives like individuals without disability has yet to be fully realized. Many people who could and want to live, work and receive services in integrated settings are still waiting for the promise of Olmstead to be fulfilled."
The 18 questions and answers in the guide provide useful information regarding the state's obligations regarding ADA and Olmstead, including Medicaid funding and other state resources and budgetary cuts that might be useful to providers in addressing state budget challenges. Below are several key Q&As. The entire document is available at htt://www.ada.gov/olmstead/q&a_olmstead.htm. Also, the department launched a new section of its ADA website at www.ada.gov/olmstead providing information and resources about the decision and its enforcement.
In addition to the newly created technical assistance document, users can visit the site to find briefs filed by the Department, as well as other materials relevant to this important area of law at http://www.ada.gov/olmstead/olmstead_enforcement.htm.
1. What is the most integrated setting under the ADA and Olmstead?
A: The "most integrated setting" is defined as "a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible." 11 Integrated settings are those that provide individuals with disabilities opportunities to live, work, and receive services in the greater community, like individuals without disabilities. Integrated settings are located in mainstream society; offer access to community activities and opportunities at times, frequencies and with persons of an individual's choosing; afford individuals choice in their daily life activities; and, provide individuals with disabilities the opportunity to interact with non-disabled persons to the fullest extent possible. Evidence-based practices that provide scattered-site housing with supportive services are examples of integrated settings. By contrast, segregated settings often have qualities of an institutional nature. Segregated settings include, but are not limited to: (1) congregate settings populated exclusively or primarily with individuals with disabilities; (2) congregate settings characterized by regimentation in daily activities, lack of privacy or autonomy, policies limiting visitors, or limits on individuals' ability to engage freely in community activities and to manage their own activities of daily living; or (3) settings that provide for daytime activities primarily with other individuals with disabilities.
7. May the ADA and Olmstead require states to provide additional services, or services to additional individuals, than are provided for in their Medicaid programs?
A: A state's obligations under the ADA are independent from the requirements of the Medicaid program.14 Providing services beyond what a state currently provides under Medicaid may not cause a fundamental alteration, and the ADA may require states to provide those services, under certain circumstances. For example, the fact that a state is permitted to "cap" the number of individuals it serves in a particular waiver program under the Medicaid Act does not exempt the state from serving additional people in the community to comply with the ADA or other laws.
9. Can budget cuts violate the ADA and Olmstead?
A: Yes, budget cuts can violate the ADA and Olmstead when significant funding cuts to community services create a risk of institutionalization or segregation. The most obvious example of such a risk is where budget cuts require the elimination or reduction of community services specifically designed for individuals who would be institutionalized without such services. In making such budget cuts, public entities have a duty to take all reasonable steps to avoid placing individuals at risk of institutionalization. For example, public entities may be required to make exceptions to the service reductions or to provide alternative services to individuals who would be forced into institutions as a result of the cuts. If providing alternative services, public entities must ensure that those services are actually available and that individuals can actually secure them to avoid institutionalization.