Where have all the Developmental Centers Gone? The Federal Push for Community-Based Services for People with Intellectual and Developmental Disabilities

• Author: Jonathan G. LernerDaniel Pollack
• Position: Jonathan G. Lerner, J.D., M.S.W. is Assistant Dean of Graduate and Undergraduate Studies at The Jewish Theological Seminary of America. Contact information: jonlerner@jtsa.edu; (212) 678-8826. Daniel Pollack is a professor at Wurzweiler School of Social Work, Yeshiva University, in New York City, and a frequent expert witness in child abuse and...
• Pages: 751-776

WHERE HAVE ALL THE DEVELOPMENTAL CENTERS

GONE? THE FEDERAL PUSH FOR COMMUNITY-BASED

SERVICES FOR PEOPLE WITH INTELLECTUAL AND

DEVELOPMENTAL DISABILITIES

JONATHAN G. LERNER & DANIEL POLLACK*

I. INTRODUCTION

Across the country, the trend in treating individuals with intellectual and

developmental disabilities has been deinstitutionalization. In recent years,

several states have been working to transition the treatment of their

intellectually and developmentally disabled citizens from state-operated

developmental centers to community-based services.1 In the process,

numerous developmental centers have been closed. While some residents,

parents, advocates and professionals are pleased with this direction, others

are fighting the process.

This article sheds light on the current state of affairs. Part II provides a

snapshot of the public services available for individuals with intellectual and

developmental disabilities and explores recent trends in the

deinstitutionalization movement.2 Part III provides an overview of the

relevant provisions of the Americans with Disabilities Act, as interpreted by

the landmark case of Olmstead v. L.C.3 Part IV provides more information

about the current push by the Department of Justice to ensure adequate

community based services and summarizes some of the predictable players

in lawsuits arising in connection with the proposed closure of developmental

centers.4 Lastly, Part V reviews a couple of recent cases where efforts

toward deinstitutionalization have led to civil lawsuits in federal court.5

Beyond the scope of this article is a broader issue: As a society, we have had

Copyright © 2015, Jonathan G. Lerner and Daniel Pollack.

Jonathan G. Lerner, J.D., M.S.W. is Assistant Dean of Graduate and Undergraduate

Studies at The Jewish Theological Seminary of America. Contact informatio n:

jonlerner@jtsa.edu; (212) 678-8826. Daniel Pollack is a professor at Wurzweiler School of

Social Work, Yeshiva University, in New York City, and a frequent expert witness in child

abuse and child welfare cases. Contact information: dpollack@yu.edu; 212-960-0836.

1 See, e.g., Overview: Developmental Center Closure, OHIO DEP’T O F DEV. DISABILITIES,

(Feb. 13, 2015), http://dodd.ohio.gov/OurFuture/Documents/DCClosureOverview.pdf.

2 See infra Part II.

3 527 U.S. 581 (1999). See infra Part III.

4 See infra Part IV.

5 See infra Part V.

752 CAPITAL UNIVERSITY LAW REVIEW [43:751

great success in discharging intellectually and developmentally disabled

residents from our state institutions; have we been as effective in providing

them the services they need to successfully live in the community?

II. BACKGROUND FACTS, FIGURES AND TRENDS

It is estimated that there are between 4.6 and 7.7 million Americans

living with intellectual and developmental disabilities (IDD).6

Approximately 460,600 of those individuals currently receive residential

care.7 A developmental disability is a severe chronic disability that can be

either cognitive or physical, or both.8 Individuals born with developmental

disabilities may have physical issues that prevent them from being able to

walk, feed themselves, or do many other activities of daily living.9 An

intellectual disability is a form of a developmental disability “characterized

by significant limitations both in intellectual functioning (reasoning,

learning, problem solving) and in adaptive behavior, which covers a range

of everyday social and practical skills.”10 The intellectual disabilities

category encompasses a number of conditions, including autism, Downs

Syndrome, self-destructive behavior, and what has been traditionally

referred to as “retardation.”11

Roughly 91% of individuals with IDD receive their care from non-

governmental agencies.12 The rest, approximately 41,680 people, live in

state-operated IDD or psychiatric facilities.13

6 How Prevalent are Intellectual and Developmental Disabilities in the United States?,

BETHESDA INSTITUTE, (2012), http://bethesdainstitute.org/document.doc?id=413.

7 See Sheryl Larson et al., Residential Services for Persons with Intellectual or

Developmental Disabilities: Status and Trends through 2011, INST. ON CMTY INTEGRATION:

UNIV. OF MINN., at xii (2013) [hereinafter Larson et al.], available at http://rtc.umn.

edu/risp/docs/risp2011.pdf (based on estimates for June 30, 2011).

8 Frequently Asked Questions on Intellectual Disability, AM. ASS’N ON INTELLECTUAL &

DEV. DISABILITIES, http://aaidd.org/intellectual-disability/definition/faqs-on-intellectual-

disability#.UsWpKPRDuSo (last visited Mar. 30, 2015) [hereinafter Frequently Asked

Questions on Intellectual Disability].

9 See Order Approving Consent Decree at 3, United States v. Virgini a, 282 F.R.D. 403

(E.D. Va. 2012) (No. 3:12-CV-00059-JAG).

10 Frequently Asked Questions on Intellectual Disability, supra note 8.

11 Order Approving Consent Decree, supra note 9, at 3.

12 Larson et al., supra note 7, at 40. See also id. at 50 (reporting that “[b]etween 19 77

and 2011, the proportion of people with IDD living in settings operated by non-state agencies

increased from 37% to 91% overall).

13 Larson et al., supra note 7, at 7.