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Medical Whistleblower Advocacy Network

Human Rights Defenders

“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

 Universal Declaration of Human Rights

Article 1

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"There can be no assumption that today’s majority is “right” and the Amish or others like them are “wrong.”

A way of life that is odd or even erratic but interferes with no right or interests of others is not to be condemned because it is different."

-- Justice Warren E. Burger Chief Justice, U. S. Supreme Court

Olmstead Supreme Court Decision

Olmstead v. L.C. by Zimring,  June 22, 1999,  6-3 Decision

  1. Issue: Whether the Americans with Disabilities Act (ADA) proscription against discrimination on the basis of disability requires placement of persons with disabilities in community settings rather than in institutions under specified circumstances.
  2. Holding: A qulified yes. The United States Supreme Court held that such an action is required when:
    1. The state's treatment professionals have determined that community placement is appropriate.
    2. The affected individual does not oppose the transfer from institutional care to a less restrictive setting.
    3. The placement can be reasonably accommodated, taking into account the resources available to the state and the needs of others with disabilities.
    4. Appropriate relief must take into consideration the range of facilities the state maintains and its obligation to administer services with an even hand. (Development of a comprehensive effectively working plan).
  3. Implications:
    1. Deference to administrative interpretation and legislative history.
    2. Unjustified segregation as a key component of disability discrimination is affirmed.
    3. Describes Medicaid as a funding source to help pay for ADA Integration requirement.
    4. Role of stakeholders in the development of comprehensive effectively working plan. (Acceptable explanations and unacceptable excuses).
    5. Actions by Health and Human Services (HHS) and its Office of Civil Rights (OCR) and Health Care Financing Administration (HCFA) to support state efforts.

 

http://www.law.cornell.edu/supct/html/98-536.ZS.html

Legal Issues of the Olmstead Judgement

The Olmstead judgment raises many complicated legal issues and questions that are not discussed here (see Rosenbaum and Teitelbaum 2005, Desonia 2003). However, two key legal concepts are:

  • 'Fundamental alteration' and 'reasonable accommodations'. Olmstead helped clarify that the ADA (Title II) requires any public body to administer programs to provide services in the most integrated setting appropriate for qualified individuals. In complying with this, public bodies are only required to make 'reasonable accommodations' to programs (e.g., Medicaid). They are not required to make any changes that would be a 'fundamental alteration' of their program. Lawsuits regarding whether the state is making enough effort (e.g., financial and administrative commitment) often include arguments and interpretations of these concepts.
  • 'Reasonable promptness'. This concept most often arises in lawsuits where complaints concern waiting lists for Medicaid services. This is because §1902(a)(8) of the Social Security Act requires states to promptly determine the eligibility of people who apply for services. Courts have ruled that this also bars states from putting people on waiting lists without assessing their need. However 'reasonable promptness' arguments can have complicated implications when discussed in relation to the ADA concepts of 'reasonable accommodation' and 'fundamental alteration'. According to Jennifer Mathis (2007), Deputy Legal Director of the Bazelon Center for Mental Health Law, a number of cases (Frederick L et al v. Dept. of Public Welfare et al of Pennsylvania; Townsend v. Quasim; Fisher et al v. Oklahoma Health Care Authority et al) have emerged that hold states to higher standards that require "measurable goals" and "specific timeframes for moving people out of institutions.

A list of DOJ briefs regarding Olmstead enforcement can be found at: http://www.ada.gov/briefs/adabrief.htm#anchor-Title%20II

Olmstead Plans

Olmstead Resource List

Supreme Court Decision: Olmstead v. L.C.

http://supct.law.cornell.edu/supct/html/98-536.ZS.html

Third Circuit Case: Frederick L. v. Department of Public Welfare of Com. of Pennsylvania (PDF)

http://caselaw.lp.findlaw.com/data2/circs/3rd/023721p.pdf

Executive Order 13217: Community-Based Alternatives for Individuals with Disabilities(June 18, 2001)

www.whitehouse.gov/news/releases/2001/06/20010619.html

Atlanta Legal Aid Society Olmstead v. LC and EW Landmark Case Summary and Impact

www.atlantalegalaid.org/impact.htm

Parent Advocacy Coalition for Educational Rights (PACER) Olmstead Fact Sheet

www.pacer.org/tatra/legislation/olmstead.asp

UCP Report: Case for Inclusion 2007

www.ucp.org/medicaid 
This report ranks all 50 States and the District of Columbia on how well they are providing community-based supports to Americans with intellectual and developmental disabilities being served by Medicaid.

National Center for Personal Assistance Services Report: Home and Community-Based Services: Introduction to Olmstead Lawsuits and Olmstead Plans

www.pascenter.org/olmstead/index.php


This report from the National Center for Personal Assistance Services provides state-by-state information on two of the major issues that have arisen from the 1999 Olmstead Supreme Court: the formal strategies, or Olmstead Plans that states developed in response to the Olmstead Ruling and a summary of community integration lawsuits related to Olmstead. The primary aim is to present a summary of information that is accessible to the public, consumers, advocates, researchers and professionals.

Olmstead Plans Lawsuits

www.pascenter.org/state_based_stats/olmstead_home.php?title=Olmstead+Plans+Lawsuits

Centers for Medicare and Medicaid Services New Freedom Initiative

www.cms.hhs.gov/NewFreedomInitiative/


The initiative is a nationwide effort to remove barriers to community living for people of all ages with disabilities and long-term illnesses. It supports states' efforts to meet the goals of the Olmstead v. L.C. Supreme Court decision

The States' Response to the Olmstead Decision: How Are States Complying?

www.ncsl.org/programs/health/forum/olmsreport.htm

Georgia Stakeholders Ask Court to Withhold Approval of Settlement with Justice Department

www.bazelon.org/newsroom/2009/Georgia_stakeholderrequest.htm

“Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around.”
 
― Leo Buscaglia

Medical Whistleblower Advocacy Network

MEDICAL WHISTLEBLOWER ADVOCACY NETWORK

P.O. 42700 

Washington, DC 20015

MedicalWhistleblowers (at) gmail.com

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"Never impose on others what you would not choose for yourself."  Confucius

"It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat."

Theodore Roosevelt- Excerpt from the speech "Citizenship In A Republic", delivered at the Sorbonne, in Paris, France on 23 April, 1910