In some states there seems to be a strong push to more vigorously enforce the Americans with Disabilities Act (ADA) integration mandate and Supreme Court Olmstead decision. One of the reasons for this recent interest could be a document released by the Department of Justice (DOJ) earlier this summer, on the integration mandate and Olmstead enforcement. It is available at http://www.ada.gov/olmstead/q&a_olmstead.htm. The document, in question-and-answer form, describes a public entities’ obligations and when the ADA’s integration mandate is implicated. In addition, DOJ developed a new Olmstead section on its web site at www.ada.gov/olmstead.

Here are some of the more interesting responses to questions in this document:

1. What is the most integrated setting under the ADA and Olmstead?
A: The “most integrated setting” is defined as “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.” Integrated settings are those that provide individuals with disabilities opportunities to live, work, and receive services in the greater community, like individuals without disabilities. Integrated settings are located in mainstream society; offer access to community activities and opportunities at times, frequencies, and with persons of an individual’s choosing; afford individuals choice in their daily life activities; and provide individuals with disabilities the opportunity to interact with non-disabled persons to the fullest extent possible. Evidence-based practices that provide scattered-site housing with supportive services are examples of integrated settings. By contrast, segregated settings often have qualities of an institutional nature. Segregated settings include, but are not limited to: (1) congregate settings populated exclusively or primarily with individuals with disabilities; (2) congregate settings characterized by regimentation in daily activities, lack of privacy or autonomy, policies limiting visitors, or limits on individuals’ ability to engage freely in community activities and to manage their own activities of daily living; or (3) settings that provide for daytime activities primarily with other individuals with disabilities.

2. When is the ADA’s integration mandate implicated?
A: The ADA’s integration mandate is implicated where a public entity administers its programs in a manner that results in unjustified segregation of persons with disabilities. More specifically, a public entity may violate the ADA’s integration mandate when it: (1) directly or indirectly operates facilities and or/programs that segregate individuals with disabilities; (2) finances the segregation of individuals with disabilities in private facilities; and/or (3) through its planning, service system design, funding choices, or service implementation practices, promotes or relies upon the segregation of individuals with disabilities in private facilities or programs.

3. May the ADA and Olmstead require states to provide additional services, or services to additional individuals, than are provided for in their Medicaid programs?
A: A state’s obligations under the ADA are independent from the requirements of the Medicaid program. Providing services beyond what a state currently provides under Medicaid may not cause a fundamental alteration, and the ADA may require states to provide those services, under certain circumstances. For example, the fact that a state is permitted to “cap” the number of individuals it serves in a particular waiver program under the Medicaid Act does not exempt the state from serving additional people in the community to comply with the ADA or other laws.

4. Do the ADA and Olmstead require a public entity to provide services in the community to persons with disabilities when it would otherwise provide such services in institutions?
A: Yes. Public entities cannot avoid their obligations under the ADA and Olmstead by characterizing as a “new service” services that they currently offer only in institutional settings. The ADA regulations make clear that where a public entity operates a program or provides a service, it cannot discriminate against individuals with disabilities in the provision of those services. Once public entities choose to provide certain services, they must do so in a nondiscriminatory fashion.

5. Can budget cuts violate the ADA and Olmstead?
A: Yes, budget cuts can violate the ADA and Olmstead when significant funding cuts to community services create a risk of institutionalization or segregation. The most obvious example of such a risk is where budget cuts require the elimination or reduction of community services specifically designed for individuals who would be institutionalized without such services. In making such budget cuts, public entities have a duty to take all reasonable steps to avoid placing individuals at risk of institutionalization. For example, public entities may be required to make exceptions to the service reductions or to provide alternative services to individuals who would be forced into institutions as a result of the cuts. If providing alternative services, public entities must ensure that those services are actually available and that individuals can actually secure them to avoid institutionalization.

Patti Cullen, CAE
952.851.2487
pcullen@careproviders.org

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