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
SUMMARY

This article sheds light on the current state of affairs. It provides a snapshot of the public services available for individuals with intellectual and developmental disabilities and explores recent trends in the deinstitutionalization movement. It provides an overview of the relevant provisions of the Americans with Disabilities Act, as interpreted by the landmark case of Olmstead v. L.C. It... (see full summary)

 
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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 DEPT 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. ASSN 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.

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