Olmstead v. L.C. Decision Q&A


Prepared by the National Association of Protection and Advocacy Systems

1) In a nutshell, what does the Olmstead v. L.C. decision mean for people with disabilities?

119 S.Ct. 2176 (1999) the Supreme Court stated loud and clear that the denial of community placements to individuals with disabilities is precisely the kind of segregation that Congress sought to eliminate in passing the Americans with Disabilities Act (ADA).  The Supreme Court correctly noted that unnecessary segregation and institutionalization constitute discrimination and violate the ADA=s Aintegration mandate unless certain defenses are established.  The decision presents new opportunities for advocating for community-based services and supports for people with disabilities.

2) Who are Olmstead, L.C and E.W?  Why did their case get decided by the Supreme Court?

L.C. and E.W. (Lois Curtis and Elaine Wilson) are two women who have mental illness and mental retardation and were confined in a Georgia state psychiatric hospital.  L.C. and E.W. wanted to receive appropriate services in the community and live outside of the state hospital.  Their doctors agreed that the women were ready for discharge to the community.  However, the state already maintained a long list of qualified persons waiting for one of the state=s few community placements to become available.  As a result, L.C. and E.W. remained unnecessarily institutionalized for years as they waited on this list.  L.C. and E.W. filed suit against Tommy  the Commissioner of Georgia=s Department of Human Resources.  That lawsuit, which is now referred to as Olmstead v. L.C., charged that Olmstead violated the ADA integration mandate by failing to provide L.C. and E.W. services in the most integrated setting appropriate to meet their needs, which in their case was the community not an institution.  After years of litigation, Olmstead asked the Supreme Court to decide once and for all whether unnecessary institutionalization of individuals with disabilities is a form of discrimination prohibited by the ADA.

3) L.C. and E.W. had mental retardation and mental illness.  Does that mean this decision only impacts people with mental retardation and mental illness?

This decision involved interpretation of the ADA.  The ADA prohibits discrimination against persons with disabilities regardless of their disability.  The ADA requires services to be provided to individuals with disabilities in the most integrated setting appropriate to their needs, regardless of disability and regardless of whether they live in an institution, a nursing home or community.

4) What is the AADA integration mandate referred to by the Supreme Court?

When Congress passed the ADA it included a prohibition of discrimination against individuals with disabilities in the provision of public services by state and local governments. Specifically, Section 12132 of  Title II of the ADA states:

. . . no qualified individual with a disability shall, by reason of his disability, be excluded from participation in, or be denied benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity

Congress also instructed the U.S. Attorney General to issue regulations defining the forms of discrimination prohibited by this section of the law.  The Attorney General issued this regulation, commonly referred to as Athe integration mandate:

A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.

[28 CFR Section 35.130(d)]

5) When the Supreme Court uses the word Ainstitution, does that also include nursing facilities, assisted living centers, and board and care facilities?

The Supreme Court declared that the ADA requires services for individuals with disabilities to be provided in the most integrated setting appropriate to their needs. If an individual is qualified to receive services in the community rather than a nursing facility and the state refuses to do so, the state is violating the ADA, unless the state can establish the defenses discussed below.

Several cases have been filed on behalf of residents in nursing facilities claiming that the state is violating the ADA integration mandate by not providing services in the most integrated settings to meet these residents' needs.  The courts have consistently held that residents of nursing facilities may be able to demonstrate that they are unnecessarily institutionalized in violation of the ADA integration mandate.  Some of these cases include: Rolland v. Cellucci (in Massachusetts), Olesky v. Michigan (in Michigan), Barthelemy v. Louisiana (In Louisiana).

As for assisted living centers and mental health board and care facilities, there has been no official court ruling that residents in these facilities are unnecessarily institutionalized.  However, some residents of a board and care facility in New York have filed suit in New York federal court arguing that the state is violating the ADA integration mandate by failing to provide them services in more appropriate integrated settings.  (see Disability Advocates v. Pataki).

6) Does this decision only affect people who are institutionalized?  What about people who are on Medicaid waiver waiting lists to receive community services but they do not live in institutions, how are they impacted by the decision?

The district court in Hawaii ruled on this very question and found that the 

Olmstead decision does apply to individuals living outside of institutions on waiting lists to receive community-based services.   In Makin v. Hawaii, The P&A brought suit on behalf of a group of individuals with Mental Retardation living at home without appropriate services claiming that Hawaii violated the integration mandate, as interpreted in the Olmstead decision.  In defense, Hawaii tried to argue thatOlmstead only applies to residents of institutions and not to persons, like the plaintiffs, living in the community and waiting on a list to receive waiver services. The court explicitly rejected that argument stating that:

In Olmstead, the plaintiffs were patients in institutions who challenged their confinement in a segregated environment.  Defendants claim that this fact distinguishes the case from the instant case since plaintiffs are living at home and not in institutions.  However, this argument is misplaced since the only alternative for plaintiffs presently is institutionalization if they seek treatment under the statute.

Since the Makin decision numerous courts, including the 10th Circuit Court of appeals in Fisher v Oklahoma, have confirmed that individuals "at risk of institutionalization" can successfully pursue an Olmstead lawsuit.  In addition the U.S. Department of Health and Human Services, Office of Civil Rights (the federal agency responsible for ensuring that states comply with the Supreme Court decision in Olmstead) has confirmed that the mandate of Olmstead applies to people living in the community, but at risk of institutionalization because of a lack of appropriate community supports.  (See HHS, Olmstead Update #2, letter to state Medicaid Directors, July 26, 2001).

Since the courts have made it clear that individuals at risk of institutionalization are covered by Olmstead, Massachusetts, came up with another argument why people on Medicaid waivers are not covered under Olmstead.  Specifically, Massachusetts argued that just because a person is on its Medicaid waiver waiting list, does not automatically mean that the individual is "at risk of institutionalization. (see, Boulet v. Cellucci). Massachusetts, maintains its waiver waiting list differently than most states, because Massachusetts automatically places any person with a disability who requests waiver services on the waiting list, without first determining whether the individual is appropriate for community services. (Most other states determine eligibility for the waiver prior to placing them on the waiting list.)   The state eventually settled the case, and conceded that everyone on the waiting list was eligible for community supports, and "at risk of institutionalization" without this service.

While other states may also try to argue that being on a Medicaid waiver waiting list does not necessarily mean they are at risk of institutionalization, it is unlikely they would succeed with this defense.  The very fact that the Supreme Court gives the state a defense that they can have a waiting list that moves at a reasonable pace, creates a presumption that anyone on the list is qualified. Ostensibly the purpose of creating a waiver waiting list is to ensure the placement of eligible persons in a reasonable time.

7) Does the Olmstead v. L.C. decision establish that all institutionalization constitutes discrimination prohibited by the ADA integration mandate?

No.  The decision establishes that the ADA integration mandate requires the state to place persons with disabilities in community settings if the community, not an institution, is the most integrated setting appropriate to their needs.  The Supreme Court set up a two part test to demonstrate that a community is the most integrated setting appropriate.  First, the state=s treating professionals should determine that community placement is appropriate for the individual.  Second, the transfer from institutional care to a less restrictive setting should not be opposed by the affected individual.  If that two-part test is met, then that person is presumed to be unnecessarily institutionalized, unless the state can establish certain defenses.

8) What if a state treating professional fails to determine that the community is the most integrated setting appropriate to meet an individuals needs, can the assessment of the state=s treating professional be challenged?

Yes, the decision leaves room for the state=s treating professional=s assessment to be challenged.  When the Supreme Court explained its two-part test it said that states may Agenerally rely on the reasonable assessments of their own professionals as to whether an individual is appropriate for community-based services. Certainly, Agenerally rely on does not mean total deference to the treating professionals on this matter.  While the state can probably not simply ignore the assessments of the state professional, the Court seems to leave room for an individual to ask for another assessment from an independent evaluator or for the state professional's opinion to be challenged.

Also the Court said the state treating professional's assessment must be Areasonable.  While the Court did not define the elements of a Areasonableassessment, a strong case can be made that, to be reasonable, an assessment must be made by a qualified professional who is familiar with relevant professional standards and the capacities of community systems.  An assessment could be challenged as unreasonable if it is made by an unqualified professional.  A professional may be unqualified not only because the professional lacks appropriate credentials, but also because the professional lacks important knowledge.  The professional may be ignorant of current standards in the field, or be unfamiliar with capacities of community systems, especially services that are now available to meet even the most challenging of needs, For example, wrap-around, crisis and respite services.

An assessment may also be challenged as unreasonable if it is the product of a flawed process.  For example, it is common for institutions to judge an individualAnot ready for the community solely because there is no community placement currently available for that individual.  Institutional staff that determine individuals to be ready for discharge only if and when services become available (i.e., a community Aslot opens up) are not making Areasonable assessments of community readiness.  Such assessments should be based on the capacities and needs of the individual with a disability, and on whether appropriately crafted community services can meet those needs.  Whether appropriately crafted services are currently available in the community has no bearing on whether the community is the most integrated setting appropriate for an individual.

9) What if an individual opposes community placement.  Does that mean the individual has a right to remain in an institution?

No.  This issue came before the Pennsylvania District Court which ruled that 

Olmstead v. L.C. does not give a person a right to remain in an institution. Specifically, advocates for institutionalization sought to intervene in a case called Richard C. v. Houstoun, (W.D. Pa. Sept. 29, 1999).  These advocates wanted to intervene in the case so that they could challenge a settlement agreement under which Pennsylvania agreed to place residents of a state mental retardation facility into appropriate, community programs.  The proposed interveners, relying on the Olmstead decision, argued that the facility's residents have a right to remain in the facility if they oppose community placement.   The District Court, rejected the proposed interveners' argument, and made it clear that nothing in the Olmsteaddecision precludes a state from closing or downsizing institutions or placing individual residents into the community and that the ADA does not confer on individuals the right to veto such actions.

10) Unnecessary institutionalization is considered unlawful under the ADA integration mandate unless the state can establish certain defenses. What are those defenses?

The Supreme Court makes clear that unnecessary institutionalization is presumed to be discrimination under the ADA and is therefore illegal.  However, the Court does offer states a defense to lawsuits challenging states= failure to provide services in the most integrated setting appropriate to the individuals needs.  The Court held that a state need only make "reasonable modifications" to its programs, not "fundamental alterations" in order to comply with the ADA integration mandate.  In other words, states are not required to transfer an unnecessarily institutionalized person to the community if doing so would Afundamentally alter the state program that the lawsuit is challenging.

The Court said that the state may look at three factors in order to establish that serving an unnecessarily institutionalized individual(s) in a more integrated setting would require a fundamental alteration of its program.

Factor One: The cost of providing community services to the individual(s). The Court is clear that states will have to bear some costs to accommodate plaintiffs'=community service needs.  The Court recognizes that needless institutionalization is an evil that the ADA was designed to redress, and emphasizes the need for states to accommodate individuals= interest in being served in the community.  As we know from nine years of case precedent regarding ADA requirements an accommodation may be reasonable even if it imposes costs.

Factor Two: The resources available to the state to fund community services. Resources available to the state are not limited to those already invested in the community system.  At a minimum, they include the resources invested in the institutions in which the individual(s) reside.  The Court endorses the notion that a state can be required to fund community placements by moving resources from institutions to the community.   Again that is the minimum.  It may also be true that resources available to the state should include resources that the state might obtain by aggressively seeking additional funds  from the legislature, for example, by restructuring or refining its Medicaid program (e.g., participating in optional programs, broadening service definitions, and  expanding waiver programs), or by taking advantage of other available resources.

The Court's concern that states maintain Aa range of facilities and be Aeven-handed does not automatically mean a loss of community placements for people with disabilities.  In fact, since most states have too much institutional capacity and offer too few community services, increasing the amount of community services would only improve the Arange of facilities offered in a state.  Thus, from the advocate's perspective, it is helpful that the Court expressly recognized the need for states to operate systems with an appropriate array of services, including sufficient community services.

11) If a state develops a plan for complying with the Olmstead decision, is that also a defense to a lawsuit?

Yes.  the Supreme Court suggests that a State could establish compliance with the ADA integration mandate if it demonstrates that it has: 1) a comprehensive, effectively working plan for placing qualified persons with disabilities in less restrictive settings, and 2) a waiting list that moves at a reasonable pace not controlled by the State=s endeavors to keep its institutions fully populated.

The Court did not define a Acomprehensive plan.  It seems appropriate that a Acomprehensive plan is one that addresses the placement needs of all individuals who are unnecessarily institutionalized or at risk of institutionalization. A state may have different plans to address different populations, as long as the needs of all individuals unnecessarily institutionalized are addressed.

The Court does not define Aeffective. It seems logical however that an Aeffective plan must have certain features:

* The plan must be directly connected to the resources to fund its activities. A plan that cannot be implemented because of insufficient resources is no plan at all.

* The plan must ensure the identification of individuals who are needlessly confined, what services they require, and the cost of those services.  Without such information, the state has no means to even evaluate whether unnecessarily institutionalized persons are moved from the institution to the community.

* The plan must include quality assurance and evaluation components, for example, ongoing monitoring and adjustment of community supports to ensure they are of high quality and meet individualized needs.  Without a system to evaluate quality of community services individuals are at risk of returning to institutions unnecessarily.

strongly recommending that States factor in certain principles and practices as they develop comprehensive, effectively working plans.  These principles also will be used by the Health and Human Services, Office for Civil Rights as it investigates complaints and conducts compliance reviews involving Amost integrated setting issues.  The following are the principles identified in the letter, in the actual letter each principle is followed by extensive details, not included here:

*  Provide an opportunity for interested persons, including individuals with disabilities and their representatives, to be integral participants in plan development and follow-up;

* Take steps to prevent or correct current and future unjustified institutionalization of individuals with disabilities;

* Ensure the availability of community-integrated services;

* Afford individuals with disabilities and their families the opportunity to make informed choices regarding how their needs can best be met in community or institutional settings;

* Take steps to ensure that quality assurance, quality improvement and sound management support implementation of the plan.

12) What is the connection between the federal Medicaid program and state enforcement of the Olmstead decision?  The Supreme Court mentioned Medicaid waiting lists; and most of the lawsuits mentioned in this document mention the state Medicaid program.


is not a case based on the federal Medicaid law. The Supreme Court decision did not directly change Medicaid law.  What the Court did do is make it clear that the state must operate its programs in a manner that complies with the ADA integration mandate.  Of all state programs, the Medicaid program is the one most likely to be impacted by the Olmstead decision, because it is a major source of state financing for long-term care for people with disabilities. Furthermore, the Medicaid program is structured so that it is much easier to obtain long-term care in an institution than to receive similar supports in the community.  This structure creates an inherent tension as far as operating the Medicaid program so that it complies with Olmstead.

The Supreme Court suggests the important role of Medicaid when it permits states a defense to an Olmstead lawsuit if states have a "plan" and a waiting list that moves at a reasonable pace not controlled by the State=s endeavors to keep its institutions fully populated.  States have widely interpreted this to allow states to maintain a list of individuals waiting for Medicaid community based services.

There are only three ways state Medicaid programs can provide home and community based services, including through: 1) the mandatory home health benefit; 2) optional state plan services; and 3) home and community based services waivers.  The home health benefit provides greatly restricted medical supports in the home.  The state can provide optional services in the community, such as, personal care supports, rehabilitation services, and private nursing.  States are often reluctant to provide these optional services, because once they agree to provide them they must provide them whenever medically necessary.

States much prefer the third option for providing community supports, the waiver program.  This program allows states to only people with specific disabilities, regardless of the need of the same service, by others with different disabilities; and only in specific areas of the state. In addition, because waivers must be "budget neutral" states are allowed to limit the number of people allowed to enroll in the waiver program.  These are referred to as "waiver caps".  Because of these caps waiting lists for Medicaid community based waiver services can be long; and in some states people can wait five or more years for community supports under the waiver.

Under Olmstead, these waiting lists are permitted, as long as the state has a plan for moving individuals into appropriate settings and a waiting list that moves at a reasonable pace not defined by an attempt to keep institutions open.  The Supreme Court did not define what constitutes a reasonable pace; however, federal Medicaid law has a similar requirement that "assistance shall be furnished with reasonable promptness to all eligible individuals."  Over the years, numerous courts have held the Medicaid reasonable promptness provision to prohibit states from making Medicaid eligible persons wait for services longer than 90 days from the date the need was identified (see for example, Doe v. Chiles, 11th Cir. 1997).

Many courts have looked at the question of whether they can force the state to expand its waiver in order to provide appropriate services to individuals on the waiting list at a reasonable pace. Courts have ruled that the ADA integration mandate can be used to require states to fill all of their waiver slots up to the level of the cap.  However, few courts have used the ADA as the reason for requiring the state to expand the waiver cap. Generally, courts tell states that they must move people of waiting lists at a reasonable pace, but they don't specifically tell state how they must do this. (see Boudreau v Illinois; Boullet v Celluci; and Eager v Engler).

13) How has the case law developed regarding the Afundamental alterationdefense in

., the Tenth Circuit held that Athe fact that Oklahoma has a fiscal problem, by itself, does not lead to an automatic conclusion that providing the community services sought by plaintiffs would be a fundamental alteration.  335 F.3d at 1182-83.  The Tenth Circuit went on to note that:

In passing the ADA, Congress was clearly aware that >[w]hile the integration of people with disabilities will sometimes involve substantial short-term burdens, both financial and administrative, the long-range effects of integration will benefit society as a whole.= . . . If every alteration in a program or service that required the outlay of funds were tantamount to a fundamental alteration, the ADA=s integration mandate would be hollow indeed.

Likewise, in Williams v. Wasserman, 164 F. Supp.2d 591 (D. Md. 2001), the court did consider the short-term costs to Maryland, in granting the state a fundamental alteration defense, however, it made clear these costs were not enough, alone.  The Court said the defense was also granted because the state was able to show a long history of attempts to shift its services from institutions to the community.

An additional area of some court agreement is that states must do more then express a vague fear that providing the community supports would constitute a fundamental alteration.  Instead courts have asked for specific evidence or expert witnesses to confirm that the extra costs necessary to provide appropriate integrated supports to the individuals bringing suit would, in fact, compel cutbacks in services to other Medicaid recipients.  (see Makin v. Hawaii, 114 F. Supp.2d 1017 (D. Haw. 1999); and Fisher v. Oklahoma Health Care Auth.).

A final area of partial court agreement is that the state need not consider its entire health and human services department budget when looking how much funds the state has to provide community supports.  Instead, most courts have allowed the state to limit the budget it considers to department, within HHS that have a nexus to providing community supports to people with disabilities.  For example, the state Medicaid program clearly has a responsibility to provide services to qualified people with disabilities unnecessarily institutionalized in nursing facility.  On the other hand, the HHS transportation programs have a less obvious responsibility. InFrederick L. v. Department of Public Welfare, the case involved people with mental illness, plaintiffs argued that the court should consider the states entire HHS budget when determining whether it could be spending more money on community supports, without fundamentally altering its program.  The Court disagreed and required the state to consider only its mental health budget. (See also, Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003); Pennsylvania Protection & Advocacy, Inc. v. Department of Public Welfare, 243 F. Supp.2d 184, 195 (M.D. Pa. 2003); and Sanchez v. Johnson, No. C-00-1593 CW (JCS) (N.D. Cal. Aug. 7, 2002).

Advocates should continue to argue that, within the departments with a clear responsibility to serve people with disabilities to prevent unnecessary institutionalization, states must shift costs from institutional settings to community settings, and take into account the cost savings achieved from closing institutional beds.  Additionally, advocates should try to present evidence that the length of time until cost-savings may be achieved will be as short as possible.

14) Does Olmstead require the state to expand or modify its Medicaid program or create new Medicaid programs in order to ensure individuals are supported in the most integrated settings appropriate to their needs?


The Courts have generally required states to modify existing services in order to ensure individuals can be supported in the most integrated settings appropriate. For example, the 10

th circuit in  Fisher v. Oklahoma, said that state can not limit prescription drug coverage for individuals in the community, to only 5 prescriptions per month, while at the same time covering unlimited prescriptions for residents in hospitals and nursing facilities.  The state had instituted the 5 prescription limit in order to save money.  The court recognized that this policy violates the ADA because it forces some individuals receiving services in the community, but needing more than 5 prescriptions per month, to move into an institution, just to get the extra prescriptions. Another example, is when the New York state court ruled that it was a violation of the ADA for the state to place a "cost cap" on the amount of supports an individual can receive under it community based waiver, when that cost limit is substantially less than the state pays for the average person receiving similar services in an institution.

One the other hand, Courts have been reluctant to require states to create new services rather than simply modify an existing program. The problem is the case that set this standard, Rodriguez v. City of New York, involves a situation where it is difficult to determine why the service requested is a new service and not simply a modification of an existing program.  In Rodriquez, plaintiffs asked the state to extend a Medicaid service that was currently provided to one group of people with disabilities, so that the same Medicaid service could also be provided to an additional group of people with disabilities.  The Second Circuit ruled that even though the service was identical, extending it to a new population would constitute a new service, and therefore was not required under Olmstead.  The definition of what constitutes a "new service" is still evolving.  In Townsend v. Quasim, the Court ruled that services should not be considered "new" if they are provided in institutional but not community settings.

15) How has the case law developed regarding state plans for complying with the Olmstead decision?

Courts have been inconsistent in how much importance it gives to state plans for complying with the decision.  For example, in the 

Frederick L. decision, the court appears to affirmatively require Pennsylvania to submit a detailed plan to the court in order to establish a fundamental alteration defense.  However, in Williams v Wasserman, the court says that Maryland does not meet the standards for a comprehensive, effectively working plan, and yet, still grants the state a fundamental alteration defense, based on factors besides a plan.

16) Does the decision give states a Adate certai by which time they are required to be serving all unnecessarily institutionalized persons in the community with supports?

The Court did not provide a specific date by which all individuals have to be appropriately served.  However, the tone of the decision certainly suggests a sense of urgency. After all this is about an ongoing violation of a person=s civil rights.  The Court concedes that a state may maintain a waiting list of individuals appropriate for community services.  At the same time, the Court is wary that a state may use such a list to delay community integration and it acts to forbid such stalling tactics by clarifying that Aa waiting list [must move] at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated.

Circuit ordered that a Areasonable pace for Medicaid services to be delivered to an individual as required by the federal Medicaid Act is no more that 90 days from the time the need was identified and requested.  Advocates may wish to use this as a benchmark for determining reasonable pace. (See

Many courts have looked at the question of whether they can force the state to expand its waiver in order to provide appropriate services to individuals on the waiting list. The vast majority has said that the state is only required to provide services up to the level of the existing Medicaid waiver cap. (see Boudreau v Illinois; and Boullet v Celluci; Eager v Engler)

17)How can I help to make sure that my state complies with the Supreme Court mandate and provides supports and services to individuals with disabilities in the most appropriate setting to meet their needs?

People with disabilities and their advocates can make sure that their state officials know of the Supreme Court=s mandate and comply with the decision in this case. In most cases, compliance will mean that the state develops a Acomprehensive, effectively working plan for placing qualified persons in less restrictive settings. Consumers and advocates must insist on meaningful input into this plan.  Beyond input consumers and advocates must be prepared to react if the elements of the plan are not implemented.  This is a big job and is larger than any one person.  Advocates are encouraged to work in coalition with other consumers and disability organizations to increase the chance that their voice is heard.

Getting involved in the planning process need not be the sole focus of advocacy efforts.  Advocates should be alert to the danger that some states may use the planning process merely to delay and stall efforts to immediately place those individuals who are already identified as appropriate for community services. Advocates should insist that the state planning process move expeditiously, and that it be accompanied by some immediate effort to expand the state=s capacity for serving people in the community.