Olmstead v. L.c. - Deinstitutionalization and Community Integration: an Awakening of the Nation's Conscience? - Samantha A. Dipolito

• Jurisdiction: United States,Federal
• Publication year: 2007
• Citation: Vol. 58 No. 4

Comment

Olmstead v. L.C.—Deinstitutionalization and Community Integration: An Awakening of the Nation's Conscience?

I. Introduction

Olmstead v. L.C.¹ is a landmark case that originated in Georgia and has been lauded as the Brown v. Board of Education for the law of disability discrimination.² In June 1999 the United States Supreme Court decided Olmstead v. L.C.,³ holding that it is a violation of the Americans with Disabilities Act ("ADA") for states to discriminate against people with disabilities by confining them to institutions when such individuals could live more appropriately in a community-based setting.⁴ Yet, nearly eight years after the Olmstead decision and fourteen years after the passage of the ADA, progress in implementing the Olmstead integration mandate remains disappointingly slow. While individuals with disabilities and advocates hailed the landmark ruling, large numbers of individuals remain unnecessarily institutionalized despite the Olmstead integration mandate.⁵

This Comment has five primary objectives. First, this Comment makes a case for deinstitutionalization and explains some of the benefits of community life and integration. Second, this Comment outlines the history of segregation and gives an overview of the incremental movement toward community care, culminating with the ADA and the Integration Regulation⁶ in the post-1990's era. Third, this Comment analyzes the Olmstead decision and its importance. Fourth, this Comment discusses some of the barriers affecting the states' implementation and transition to community integration, followed by a discussion of the federal government's efforts to assist the states in complying with the Olmstead mandate. Fifth, this Comment explains why community integration can be more beneficial today and easier than ever in a call to genuinely awaken the nation's conscience.

II. The Case for Deinstitutionalization

Institutionalization is the most extreme form of segregation. Institutionalized individuals suffer a dramatic loss of physical freedom with severely invasive treatment. They cannot enjoy the simple, daily pleasures that the average American takes for granted, such as shopping, working, exercising, companionship, making their own schedules, or solitude.⁷ Citizens who do enjoy these freedoms of American society would undeniably find the loss of such things "not only intolerable but a threat to [their] very sanity."⁸

Institutionalized individuals are deprived of commonplace, yet precious, liberties such as inclusion, dignity, self-direction, privacy, choice, enjoyment of the responsibilities of citizenship, and participation in and contribution to one's community. More accurately, individuals in institutions experience dependency, physical segregation, social isolation, and second-class citizenship. In the worst-case scenarios, individuals in institutions suffer physical, mental, and emotional abuse and neglect. Even for those who do not suffer egregious neglect or abuse, life in an institution nonetheless leads to a certain degree of institutional dependence. This dependence manifests itself in a loss of social and intellectual competencies and atrophy of the ability to live outside the institution.⁹

Just a glimpse at the immediate aftermath of the Olmstead ruling proves there are individuals in institutions who need not be there and have much to offer society beyond the walls of an institution. The lives of the two Olmstead plaintiffs, Ms. Curtis and Ms. Wilson, illustrate the benefit and magnitude of the decision and show the positive effect the decision can have on individuals as well as society as a whole. Ms. Curtis and Ms. Wilson progressed rapidly once they were moved to community-based settings. Their rapid advancements revealed the limitations of their former institutional circumstances. Ms. Curtis takes long walks and has reconnected with her mother and sister. She visits the mall, picks out her own clothes, and has learned to plan a menu. Additionally, she speaks clearly, communicates well, and has developed meaningful friendships with others that live with her in a group home. With practical assistance and encouragement from her customized support team, Ms. Curtis has started to produce and sell note cards that illustrate her own artwork.¹⁰

Ms. Wilson spent a year in a group home where she decorated her own room and organized picture albums. She then transitioned into a home where she lived with a caretaker and a friend. Ms. Wilson attended a prevocational program and became increasingly independent. Interestingly, she took complete responsibility for her own medical needs, which was one domain in which institutional doctors felt she could not succeed independently. Moreover, she developed her own advocacy skills by speaking around the country about her experiences, the injustices of institutional life, and her hopes for the freedom of other individuals in institutions.¹¹

Indeed, the magnitude of the societal effect of Olmstead is undeniable because disability is an experience that will touch most Americans to some degree in their lives. Today, over fifty-four million Americans, or one in every five, are living with a disability.¹² People with disabilities make up the nation's largest minority and the only minority that any person can join at any time.¹³ Individuals with disabilities cross all gender, racial, religious, educational, and socioeconomic lines.¹⁴ Some individuals are born with disabilities, some may become disabled through an accident or illness, and many will face disability through the aging process. These astonishing statistics raise the moral question of whether or not we are our brother's and sister's keeper? The answer should be a resounding "yes"!

Although the Olmstead decision has become known as the integration mandate, there remain many post-Olmstead implementation issues which need to be actively addressed. There is no question that the long-term costs of home and community-based care are less than that of institutional care. Further, community care is not merely a financially superior option, but a morally and legally superior one as well. Yet, in the aggregate, our nation has made little progress toward the goal of transitioning from institutions to community integration. Why is this situation so immutable and what is holding the states back? Or more importantly, what are the states waiting for to take substantial action?

III. History of Deinstitutionalization and the ADA

A. The Incremental Movement Toward Community Care

The discriminatory treatment and segregation of persons with disabilities has deep historical roots. Individuals with disabilities have been segregated in institutions and isolated from mainstream society in the United States for over one hundred years.¹⁵ For over half of the twentieth century, people with mental and developmental disabilities were typically placed in large institutions, and some relied solely on their families for care and financial aid. Little to no assistance was available from the government.¹⁶ Indeed, the majority of early cases addressing people with disabilities evidenced eugenics measures to control their reproduction and forced institutionalization.¹⁷

During this time, medical professionals advanced the view that individuals with disabilities were more likely to engage in criminal and sexually immoral behavior, and thus, were a menace to society.¹⁸ This stereotypical notion, coupled with the perceived danger that such individuals posed, furthered the idea that they should be locked up and segregated from the rest of the community.¹⁹ Consequently, institutions came to be viewed as the most effective solution, whereby individuals with mental disabilities could be given the paternalistic protection they were perceived to need, and society at large could be safeguarded from their alleged vices.²⁰

1. 1950s-1970s: Civil Rights Era and the Rehabilitation Act. Efforts to progress forward from institutions to community care began to surface in the 1950s and continued with somewhat more force in the 1960s and 1970s.²¹ "Until the late 1960s, the dual attitudes of paternalism and fear ensured a segregated, institutionalized existence for people with disabilities."²² A strengthening civil rights movement empowered disability rights advocates to seek improved living conditions and, more importantly, to retreat from unnecessary institutionalization altogether. Further, sociological studies exposed the abuse and neglect that was occurring in institutions and became a factor in the stimulus for change.²³

An increased societal emphasis on personal autonomy and individual rights, coupled with a strengthened agreement among experts that many people with disabilities could benefit and thrive in less restrictive settings, supported the deinstitutionalization movement.²⁴ By the early 1970s, courts were faced with many class action suits challenging poor institutional conditions.²⁵ These courts "consistently concluded that the civil rights of individuals with mental retardation and other developmental disabilities were being violated."²⁶ The key legislative impetus behind this movement was the Rehabilitation Act of 1973 ("Rehab Act").²⁷

Section 504 of the Rehab Act was the first broad civil rights-oriented federal statute to address discrimination against people with physical and mental disabilities.²⁸ The Rehab Act prohibited federal programs from excluding persons on the basis of disability and provided the framework for vocational rehabilitation and independent living programs.²⁹ Nevertheless, circuit courts refused to find a right to the least restrictive environment under the Rehab Act and consistently denied that the Rehab Act required states to place people with disabilities in such an environment.³⁰ Thus, rights for persons with disabilities were recognized during the civil rights era, but more progress was needed to reach the ideal of community integration for everyone.

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