Student Corner: The Olmstead Decision: Compliance and Action in North Carolina

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Student Corner: The Olmstead Decision: Compliance and Action in North Carolina

By CED Program Interns & Students

Published January 11, 2018

The 1999 Olmstead v. LC decision, also known as the Olmstead Decision or simply Olmstead, marked one the most important civil rights cases for people with disabilities in the United States. Underpinned by the 1990 Americans with Disabilities Act (“ADA”), the Olmstead Decision brought forth a framework that would oblige states to provide support services to disabled Americans in the community as opposed to in institutional settings. This blog post will provide an overview of Olmstead and its significance in North Carolina, including its history, challenges with compliance, and opportunities to provide integrated transitional housing.

History

By 1900, many of the mental health institutions built in the 1800s were becoming overcrowded. This trend continued throughout the 1900s, as additional psychiatric institutions were built and nursing facilities were introduced and grew into the primary institutions for senior citizens and those with physical disabilities. Public policy related to deinstitutionalizing psychiatric patients abated much of the psychiatric facility growth by the 1960s, but growth in nursing facilities grew unabated until this population reached approximately 1.5 million Americans.

In 1990, President George H.W. Bush signed the Americans with Disabilities Act into law. Among other things, Title II of the ADA prohibited public entities – including state and local governments – from discriminating against “qualified individuals with disabilities” by excluding them from services and activities due to their disability. In a key case related to the ADA, the United States Court of Appeals for the Third Circuit found that a woman (Helen L.) had the right under the ADA to receive attendant care services in her community instead of a nursing facility. The Supreme Court decided not to hear the case when the State of Pennsylvania appealed, but Helen L. v. Didario set the backdrop for what would become the Olmstead Decision four years later.

Olmstead Overview

Lois Curtis and Elaine Wilson were both confined to state or local hospitals when the Atlanta Legal Aid Society filed a lawsuit on behalf of Curtis in May of 1995. Wilson joined the case in 1996, and in 1997, Judge Marvin Shoob ruled in favor of the plaintiffs, declaring the failure of the Georgia Department of Human Resources and Georgia Regional Hospital to “place plaintiffs in an appropriate community-based treatment program [violating] Title II of the Americans with Disabilities Act”.

The case made its way to the Supreme Court, where the decision would set precedent for the entire country. Justice Ruth Bader Ginsburg announced the decision, stating that the Supreme Court answered with a “qualified yes” to the question of whether the ADA required states to place qualified persons in community settings as opposed to institutions. The stipulations under which a state would be required to utilize community-based treatment programs are as follows, and form the basis for testing compliance with respect to the ADA and the decision:

1. the person’s treatment professionals determine that community supports are appropriate;
2. the person does not object to living in the community; and
3. the provision of services in the community would be a reasonable accommodation when balanced with other similarly situated individuals with disabilities.

Difficulty in Complying with Olmstead

Difficulty in fully complying has been a chief facet of the post-Olmstead world. On a positive note, although the decision only involved one type of institution – a psychiatric hospital – all state and Medicaid funded institutions, inclusive of nursing facilities, were quickly added to the list by subsequent court decisions. On the other hand, full compliance is exceedingly difficult given the overcrowded nature of state and Medicaid funded institutions throughout the country. To combat this, states are required to have a waiting list that moves at a reasonable pace that is maintained by a party neutral to the cause of the state institutions.

Still, few, if any, states can credibly demonstrate full compliance with Olmstead, even with the 2009 shift by the United States Justice Department toward making Olmstead a priority of its Civil Rights division, culminating in enforcing the mandate state by state.

Olmstead in North Carolina

The Department of Justice began investigating North Carolina’s compliance in 2010, specifically focused on mental health services. A formal letter of findings stating that North Carolina failed to provide adequate services and stood in violation of the ADA was issued in July 2011. An August 2012 settlement was issued in which North Carolina agreed to expand community-based services and supportive housing over the next eight years, to establish a pre-admission screening process to prevent people from unnecessarily entering institutions and to create an institutional discharge planning process to ease transitions into community-based settings.

Compliance with this agreement, too, has been slow in North Carolina. In January 2017, the DOJ stated that North Carolina “has repeatedly failed to comply with the agreement’s housing and employment services provision, lagging far behind schedule”. The state transferred 853 individuals as of June 30, 2016 – with a target of 3,000 – and 203 of the 853 have left independent housing, requiring a higher level of care or a more congregate setting. North Carolina has until 2021to comply with the settlement agreement, and is one of several states involved in Olmstead settlements or lawsuits with the federal government.

In spite of delays, the NC Department of Health and Human Services and the NC Housing Finance Agency are hard at work ensuring sufficient housing is provided to eligible North Carolinians. The Transitions to Community Living Initiative (“TCLI”) focuses on those who are transitioning from adult care homes, state hospitals or citizens who are at risk for institutionalization. The program is a six-part initiative, focused on transitioning existing persons, diverting potential persons from institutions, providing community-based housing, providing supporting employment, providing assertive community treatment and maintaining high quality. Moreover, the program provides for a Transitions to Community Living Voucher, a tenant-based voucher program for up to $600 per month that can be used with any landlord who accepts the voucher and also includes assistance for security deposits and move-in expenses. The program also includes funds for risk mitigation in case of non-payment of rent, abandonment, and damages. Moreover, the state developed a 2017 Permanent Supportive Housing Plan to both increase the pipeline of eligible units and maximize access to opportunities.

All in all, North Carolina continues to face challenges with respect to Olmstead compliance – a contentious issue in the state’s current discourse. However, the state continues to develop programs and initiatives to not only ensure compliance, but to ensure that all North Carolinians have access to care in environments that are best suited to their specific needs.

Stan Portnov is a second-year MBA candidate at the Kenan-Flagler Business School at UNC-Chapel Hill. He is also a Community Revitalization Fellow with the Development Finance Initiative.