The Olmstead Decision of 1999

Ask the Expert: The Olmstead Decision of 1999
Michael Kaplen, Esq.
Question: 

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?

Answer: 

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.

 

Posted on BrainLine June 3, 2009. Reviewed March 20, 2018.

About the author: Michael Kaplen, Esq.

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.

Michael Kaplen

Comments (2)

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Anonymous replied on

what is the most competent computer for high level medical professional s/p ,severe TBI ,with need for touch screen and voice communication. problem 1 finger typer (permanent brain deficit) taking 15-20 hours for 8 pd  hrs ,equivalency.  I have full disability granted since grossy 1999, blessed to work as TBI  again. THANKS

Anonymous replied on

Regional and State Universities’ Obligations to Disabled and TBI Students? Part 1: What obligations do regional and state universities have to protect and accommodate service rights of students with disabilities including students with Traumatic Brain-injuries (TBI)? Universities' commitment, in particular, to its current population of Traumatic brain-injured students and future commitment to prospective brain-injured students is becoming an increasing concern, especially as Traumatic brain-injured Veterans return home from military tours. This may signal a need for more collaborative accommodations and other initiatives in behalf of this growing segment within University student populations. Especially is this true when it comes to Universities’ "on-line classrooms", such as for example, "WebTycho", a Web-based virtual classroom within the University of Maryland University College's (UMUC)Web-based, long distance learning academic space. Perhaps, in general, universities’ semester and course curriculum scheduling is where such a study might begin to focus its research. Additionally, this study might also focus on qualitatively and quantitatively score card (via performance outcomes) the actual effectiveness of universities on-line academic course curriculum scheduling policies ability or inability to accommodations disabled students as well as Traumatic brain-injured students, beyond the routine and potentially misleading mandatory student course evaluation form. UMUC, for example, facilitates an on-line student course evaluation. It is mandatory that students, ironically, complete the course evaluation in the during of the course as oppose to just after the course has ended and prior to posting of grades. Why is this important? Well, because of the potential increasing number of disabled and brain-injured students engaging in the 'on-line' University experience - as registered, matriculating students of that University. In light of this fact, an important question arises. How many brain-injured students’ rights - to equal access to educational facilities; including Web-based classrooms and equal access course scheduling activities – as protected by federal laws may actually be routinely violated (perhaps unintentionally) by a plethora of “faceless” on-line, long distance Professors. Notably, this may include Professors who may be, understandably, too busy to ensure equal access to curriculum scheduling and other educational service rights deserved by disabled and brain-injured students, hence permeating problematic issues relevant to the limitations of online student-professor relationships within the long distance learning space, not often as problematic within universities’ face to face classroom space. Again, understandably, this may be due to a Professor’s demanding post-doctoral research load. Nevertheless, this unintentionally infringement on federal laws protecting the educational civil rights of disabled and brain-injured students are being denied equable access to educational facilities including universities’ on-line, Web-based academic curriculum and program scheduling activities and services afforded to disabled and brain-injured students. End